Ramirezv.Lewis

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORKNov 2, 2018
18 Civ. 3486 (VEC)(HBP) (S.D.N.Y. Nov. 2, 2018)

18 Civ. 3486 (VEC)(HBP)

11-02-2018

JOSE JOAQUIN RAMIREZ, Plaintiff, v. OFFICER LEWIS, Individual Capacity (Badge # 10537 or 10735), et al., Defendants.


REPORT AND RECOMMENDATION

: TO THE HONORABLE VALERIE E. Caproni, United States District Judge,

In Docket Item ("D.I.") 9, the pro se plaintiff moves "for Injunctive Relief to Stop Unreasonable Strip Searches." For the reasons set forth below, I respectfully recommend that the motion be denied.

Construing the filings in this case leniently in light of plaintiff's pro se status, the complaint appears to allege the following facts. Plaintiff appears to be a pretrial detainee in the custody of the New York City Department of Corrections ("DOC") who is currently housed at Rikers Island. Plaintiff alleges that on March 29, 2018, the DOC's "Special Search Team" conducted a search of plaintiff's cell. At the time the team commenced the search, unidentified individuals ordered plaintiff into a bathroom to conduct a strip search. Plaintiff refused to submit to a strip search, and defendant Lewis "wiretaped" [sic] plaintiff's wrists in an extremely tight manner, cutting off blood flow to his hands and causing "severe shoulder pain." Plaintiff alleges that he was held in a hallway with his hands "wiretaped" together for an extended period of time while his cell was searched.

After about an hour, plaintiff was brought to another building and placed in a five foot by eight foot cell with his hands still "wiretaped" together. Plaintiff goes on to allege that while in this cell, his fingers turned "purple/blue," and he requested medical attention. These requests were, however, ignored. After five or six hours, plaintiff was returned to his cell. He claims that his property was in disarray and that some of his clothing was missing. The complaint does not allege that plaintiff was, in fact, ever subjected to a strip search.

Plaintiff's motion for injunctive relief is particularly sparse. In its entirety, it reads:

On April 25th Jose Joaquin Ramirez was asked again to perform an unreasonable strip to be searched without probable cause. As a result of not waivering [sic] his Constitutional Right at Bar, Jose Joaquin Ramirez was severely punished, causing further shoulder injury (see case # 18cv4040), numbing in hands, loss of blood flow and severe mental anguish.

Please grant Preliminary Injunctive relief to stop the illegal and Unconstitutional Strip Searches, this is beyond unreasonable - it is Egregious and an ongoing problem -- issue relief.

(Plaintiff's Motion for Injunctive Relief to Stop Unreasonable Strip Searches (D.I. 9) at 1).

Given plaintiff's pro se status, I have also considered a submission that plaintiff made approximately two months after his motion for injunctive relief, entitled "Order to Show Cause" (D.I. 11). In this document, plaintiff recounts another incident in which he was ordered to submit to a strip search, he refused and was punished through the application of tight "wiretapes" and a threat to transfer him to a housing unit in which violence was very common.

Inexplicably, defendants have not submitted any opposition to plaintiff's motion. Nevertheless, because of the extremely serious safety and security concerns that would result from granting the injunction plaintiff seeks, I shall consider the merits of plaintiff's motion notwithstanding defendants' default.

The standards applicable to a motion for a preliminary injunction are well settled. A preliminary injunction is an "extraordinary remedy" and is never awarded "as of right." Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see also Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 65 (2d Cir. 2007).

For a preliminary injunction to issue, the movant must establish "(1) 'irreparable harm'; (2) 'either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its

claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party'; and (3) 'that a preliminary injunction is in the public interest.'"

trueEX, LLC v. MarkitSERV Ltd.
, 266 F. Supp. 3d 705, 718 (S.D.N.Y. 2017) (Kaplan, D.J.), quoting New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015); see also Winter v. Nat'l Res. Def. Council, Inc., supra, 555 U.S. at 20 (collecting cases); accord Demirayak v. City of New York, Docket No. 17-3709-cv, 2018 WL 4043330 at *1 (2d Cir. Aug. 24, 2018) (summary order).

Although plaintiff's application for injunctive relief suffers from a number of defects, the most significant problem with plaintiff's claim is that it lacks a probability of success and serious questions going to the merits. Numerous cases have held that, given the security concerns that exist in detention facilities and prisons, random strip searches of pre-trial detainees and prisoners that are conducted in a reasonable manner do not violate the Fourth Amendment. Walker v. Ponte, 14 Civ. 8507 (ER), 2016 WL 4411415 at *4 (S.D.N.Y. Aug. 18, 2016) (Ramos, D.J.) ("[R]andom strip searches may be conducted even in detainees' housing units."); accord Corley v. City of New York, 14 Civ. 3202 (GHW), 2017 WL 4357662 at *16 (S.D.N.Y. Sept. 28, 2017) (Woods, D.J.); Peek v. City of New York, 13 Civ. 4488 (AJN), 2014 WL 4160229 at *2 (S.D.N.Y. Aug. 18, 2014) (Nathan, D.J.); Simmons v. Cripps, 12 Civ. 1061 (PAC)(DF) (Freeman, M.J.) (Report & Recommendation), 2013 WL 1290268 at *21 (S.D.N.Y. Feb. 15, 2013), adopted at 2013 WL 1285417 (S.D.N.Y. Mar. 28, 2013) (Crotty, D.J.); Malik v. City of New York, 11 Civ. 6062 (PAC)(FM), 2012 WL 3345317 at *13 (S.D.N.Y. Aug. 15, 2012) (Maas, M.J.) (Report & Recommendation), adopted at 2012 WL 4475156 (S.D.N.Y. Sep. 28, 2012) (Crotty, D.J.); Israel v. City of New York, 11 Civ. 7726 (JMF), 2012 WL 4762082, at *3 (S.D.N.Y. Oct. 5, 2012) (Furman, D.J.); Castro-Sanchez v. N.Y. State Dep't of Corr. Servs., 10 Civ. 8314 (DLC), 2011 WL 6057837 at *9 (S.D.N.Y. Dec. 6, 2011) (Cote, D.J.) ("Routine random strip searches of inmates, including body cavity inspections, do not violate the Fourth Amendment.").

Although several of the cases cited in the text arose out of strip searches of sentenced prisoners rather than pretrial detainees, that difference is not material. Strip searches are a security measure to guard against the presence of contraband detention facilities and prisons. In Bell v. Wolfish, 441 U.S. 520, 546 n.28 (1979), the Supreme Court found that there was "no reason" to:

distinguish[] between pretrial detainees and convicted inmates in reviewing . . . security practices . . . . There is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates. Indeed, it may be that in certain circumstances they present a greater risk to jail security and order.


A pretrial detainee does have a Fourth Amendment right against unreasonable or abusive strip searches. Shabazz v. Pico, 994 F. Supp. 460, 473 (S.D.N.Y. 1998) (Sotomayor, D.J.), vacated in part on other grounds and aff'd in pertinent part, 205 F.3d 1324 (2d cir. 2000) (summary order). However, a plaintiff asserting that a strip frisk was unreasonable or abusive bears the burden of alleging and proving the search was unreasonable or abusive. Peek v. City of New York, supra, 2014 WL 4160229 at *2; Shabazz v. Pico, supra, 994 F. Supp. at 473. Plaintiff neither alleges, nor offers evidence of, any facts suggesting that the strip searches to which he was subjected were unreasonable. Plaintiff's conclusory allegation that the searches described in his submissions were unreasonable, without any supporting facts that would support a finding of unreasonableness, is insufficient.

Accordingly, for all the foregoing reasons, I respectfully recommend that plaintiff's motion for injunctive relief (D.I. 9) be denied in all respects. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections and responses thereto) shall be filed with the Clerk of the Court with courtesy copies delivered to the Chambers of the Honorable Valerie E. Caproni, United States District Judge, 40 Centre Street, Room 240, New York, New York 10007 and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York


November 2, 2018

Respectfully submitted,

/s/_________


HENRY PITMAN


United States Magistrate Judge Copy mailed to: Mr. Jose Joaquin Ramirez
NYSID: 02550757R
B&C No. 8951800176
Anna M. Kross Correctional Facility
18-18 Hazen Street
East Elmhurst, New York 11370 Copy transmitted to: Counsel for Defendants

Accord Holland v. City of New York, 197 F. Supp. 3d 529, 538 n.5 (S.D.N.Y. 2016) (Torres, D.J.)