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Cook v. Suterland

United States District Court Southern District of New York
Sep 17, 2019
Docket No.: 7:19-cv-02780 (NSR) (S.D.N.Y. Sep. 17, 2019)

Opinion

Docket No.: 7:19-cv-02780 (NSR)

09-17-2019

Re: Kevin Cook v. Officer Suterland, et al.

Sharon Worthy-Spiegl Deputy County Attorney Municipal Law Unit TEL: (845) 291-3150 FAX: (845) 378-2374 Family Law Unit Tiffany N. Gagliano Chief Assistant County Attorney Family Law & Juvenile Justice TEL: (845) 291-2650 FAX: (845) 360-9161 Kevin Cook, Plaintiff Pro Se Orange County Correctional Facility 110 Wells Farm Road Goshen, New York 10924


MEMORANDUM ENDORSEMENT

The Court reviewed Defendants' attached pre-motion letter, dated September 17, 2019 (ECF No. 15). The Court has also reviewed Plaintiff's attached responses, filed on October 2, 2019 (ECF No. 17), October 24, 2019 (ECF No. 18), and December 2, 2019 (ECF No. 19.) Due to Plaintiff's incarceration, the Court waives the pre-motion conference requirement and grants Defendants leave to file their motion to dismiss with the following briefing schedule: Defendants' moving papers are to be served (not filed) on February 13, 2020; Plaintiff's opposition is to be served (not filed) on March 16, 2020; Defendants' reply is to be served on March 20, 2020. Defendants' counsel is directed to file all motion documents, including Plaintiff's opposition, on the reply date, March 20, 2020. The parties shall provide two copies of their respective documents to chambers as the documents are served. Plaintiff's attached motions for summary judgment (ECF Nos. 20 and 21) are premature, and are therefore DENIED without prejudice to renewal at a later stage in the proceedings after sufficient discovery has occurred. The Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 15, 20, and 21. The Clerk of the Court is further directed to mail a copy of this order to Plaintiff at Plaintiff's last address listed on ECF and to show proof of service on the docket.

Dated: January 14, 2020

White Plains, NY

SO ORDERED.

/s/_________

Nelson S. Román, U.S.D.J. Orange County COUNTY ATTORNEY

Langdon C. Chapman Orange County Attorney

STEVEN M. NEUHAUS County Executive

Sharon Worthy-Spiegl
Deputy County Attorney Municipal Law Unit TEL: (845) 291-3150
FAX: (845) 378-2374 Family Law Unit
Tiffany N. Gagliano
Chief Assistant County Attorney
Family Law & Juvenile Justice TEL: (845) 291-2650
FAX: (845) 360-9161 Via ECF
Hon. Nelson S. Román
United States District Judge
United States Courthouse
500 Pearl Street
New York, NY 10007-1312 Dear Judge Román:

Please be advised that we are the attorneys representing Officer Sutherland, Sheriff Carl DuBois and Officer DeWitt (hereinafter collectively the "County Defendants") in the above matter. We write pursuant to Your Honor's Individual Rules to request a pre-motion conference for purposes of obtaining the Court's permission to file a motion to dismiss plaintiff's complaint in its entirety as against the County Defendants on the grounds specified below, inter alia.

Officer Sutherland incorrectly named in the caption as Officer Suterland.

Plaintiff's complaint filed under 42 U.S.C. §1983, specifying constitutional violations under the Fourth and Fourteenth Amendments, alleges that he was subjected to verbal harassment by Officer Sutherland. Additionally, Plaintiff alleges that during a pat down of his person, Officer DeWitt kept the palm of his hand on his backside for approximately 3 minutes while Officer Sutherland watched.

"[I]t 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." Byng v. Wright, (No. 09 Civ. 9924 (PKC) (JCF)), 2012 WL 967430 at * 13 (S.D.N.Y. Mar. 20, 2012) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (emphasis added). An official may not be held liable simply because he or she holds a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).

Specifically, Plaintiff's complaint makes no allegations regarding Defendant DuBois and his personal involvement in the alleged constitutional violations against Plaintiff. Defendant DuBois' mere position as Sheriff of Orange County, with nothing more, is insufficient to allege a §1983 action.

Plaintiff's also complaint fails to state a § 1983 claim for a violation of his rights under the Fourteenth Amendment. Patterson v. Ponte, 16-cv-3156 (PAE)(JCF); 2017WL1194489 (S.D.N.Y. March 30, 2017). Plaintiff's allegations of a pat down of his person, which he admits was incidental to a cell search, fails to allege acts by prison officials which are objectively, sufficiently serious, without a legitimate penological purpose, and "undertaken to arouse or gratify the officer or humiliate the inmate." Crawford v. Cuomo, 796 F.3d 252, 257-58 (2d Cir. 2015); see also Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997) (abuse that is "severe or repetitive" can be objectively, sufficiently serious conduct), Darnell v. Pineiro, 849 F.3d 17, 29-35 (2d Cir. 2017) (more lenient standard applies to pre-trial detainees when assessing the subjective prong). Plaintiff's claim of one incident wherein he experienced no violence, injury or humiliation fail to meet the standard. See McCarroll v. Matteau, 2010 WL 2346327, *4-5 (N.D.N.Y., May 17, 2010) (insufficient where prison official touched his penis during a pat down); see also Garcia v. Watts, 2009 WL 2777085, *6-7 (S.D.N.Y., Sept. 1, 2009) (defendant grabbed plaintiff's buttocks on two occasions and rubbed his penis against plaintiff's buttocks insufficient); Williams v. Keane, 1997 WL 527677, *9-11 (S.D.N.Y., Aug. 25, 1997) (insufficient where defendant put his hand down plaintiff's pants and fondled plaintiff's testicles).

At the time of the alleged incident in the complaint, Plaintiff was a pre-trial detainee. --------

Moreover, Plaintiff fails to sufficiently allege a violation under the Fourth Amendment to establish a § 1983 claim as he had no subjective expectation of bodily privacy in a clothed pat frisk search of his person in a correctional setting. Plaintiff's complaint fails to allege that CO DeWitt had no sufficient justification to conduct a pat frisk of his person. In fact, Plaintiff readily concedes that the pat down was done in connection with fight at the facility. Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (routine searches of inmates, including strip searches, have long been accepted as not violative of the Fourth Amendment); see also Eng v. Therrien, 2008 WL 141794, at *8 (N.D.N.Y. Jan. 11, 2008) (allegations of improper pat frisks, even if true, do not violate the Fourth Amendment). Sufficient justification requires an analysis of, (1) the scope of the particular intrusion; (2) the manner in which it was conducted; (3) the justification for initiating it; and (4) the place in which it was conducted." Harris v. Miller, 818 F.3d 49, 58 (2d Cir. 2016), see also Bell v. Wolfish, 441 U.S. 520, 559 (1979). Defendant DeWitts's pat frisk as alleged by Plaintiff, which was conducted outside of his cell and for a specific penological purpose over Plaintiff's clothing was not inherently intrusive and was justified.

Lastly, Plaintiffs' complaint is barred by the Prison Litigation Reform Act of 1995 ("PLRA"). The PLRA states that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C § 1997e(a). "Moreover, a claim must be completely exhausted prior to commencing suit. It is insufficient to take only limited steps towards exhaustion before commencing suit, or even to exhaust a claim entirely during the pendency of the case," Schwartz v. Dennison, 518 F.Supp.2d 560, 568 (S.D.N.Y. 2007). However, as is plainly evident from the face of the Complaint - and the grievances Plaintiff filed with the Court that Plaintiff did not exhaust his administrative remedies with respect to his claims against the County Defendants prior to commencing this action as mandated by the PLRA. In fact, four of the five grievances Plaintiff filed with this Court were filed after the complaint was filed and therefore could not have been in compliance with the PLRA.

Thank you for your consideration in this matter.

Respectfully yours,

/s/

Carol C. Pierce

Chief Assistant County Attorney Kevin Cook, Plaintiff Pro Se
Orange County Correctional Facility
110 Wells Farm Road
Goshen, New York 10924

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Summaries of

Cook v. Suterland

United States District Court Southern District of New York
Sep 17, 2019
Docket No.: 7:19-cv-02780 (NSR) (S.D.N.Y. Sep. 17, 2019)
Case details for

Cook v. Suterland

Case Details

Full title:Re: Kevin Cook v. Officer Suterland, et al.

Court:United States District Court Southern District of New York

Date published: Sep 17, 2019

Citations

Docket No.: 7:19-cv-02780 (NSR) (S.D.N.Y. Sep. 17, 2019)