J. PAUL OETKEN, District Judge:
Plaintiff Forest L. Fate, Sr. ("Fate") brings this action under 42 U.S.C. § 1983 against the Village of Spring Valley, New York (the "Village") and Officers Ronnie Charles ("Charles"), Christopher Korba ("Korba"), and Khalid Parwanta ("Parwanta") for alleged constitutional violations arising out of an arrest and search on October 31, 2009. Fate asserts Fourth Amendment claims for unreasonable search, illegal seizure of currency, malicious prosecution, and excessive force. Defendants move for summary judgment on all but the excessive force claim. For the reasons that follow, Defendants' motion is granted in part and denied in part. Fate's malicious prosecution claims are dismissed, but his remaining claims survive summary judgment.
Because Defendants move for summary judgment, the following section summarizes the evidence in the light most favorable to Fate.
On the morning of October 31, 2009, Fate was walking to a deli to pick up breakfast for himself and his wife when he noticed a police SUV drive by. Fate had been living in North Carolina and had recently returned to Spring Valley in order to bail his son, Forest Fate, Jr., out of jail. As he reached the store, the SUV circled around and pulled up beside him. Inside were Officers Charles and Korba.
Charles rolled down his window and asked Fate whether he knew him. He did. Charles grew up in the same area as Fate, and, according to Fate, had a "personal problem with [him] because he assumed that [Fate] or [Fate Jr.] was dating or messing with his baby's mother." (Dkt. No. 73 ("Holtzer Decl."), Ex. E ("Fate Tr.") 21:24-22:3.) Charles "would always harass [Fate]" and had done so "about three times" in his capacity as an officer, for instance by randomly stopping Fate and patting him down. (Id. 25:16, 26:20-24, 27:2-4.) Fate claims that in 2006, Charles tackled him from behind and arrested him (mistaking Fate for Fate Jr.), and took money from Fate and did not give it back. (Id. 42:6-11.) Fate's allegations are corroborated, to an extent, by Charles and Korba. Korba testified that he knew that Charles had run-ins with Fate before. (Holtzer Decl., Ex. F ("Korba Tr.") 27:14-28:7.) And Charles testified
Fate, therefore, recognized Charles's face. But because he could not recall his name, he responded: "No, not that I know of." (Fate Tr. 56:5-17.) Charles asked Fate if his name was Forest, and he said yes. Charles asked "Forest what?" and Fate replied: "I was raised by the Bullock family, so you might think that you know me from the Bullock family because that's who I was raised by." (Id. 56:19-22.) Charles then expressly asked for Fate's last name, and Fate responded: "Well, some call me Forest Bullock, some call me Forest Gump or whatever." (Id. 57:9-15.) Charles told Fate: "If I jump out of this truck, if I found out your name is something other than Forest Bullock or Forest whatever you call it ... I'm going to lock your ass up for false impersonation." (Id. 58:3-8.) Fate still did not reveal his last name, but offered to let Charles see his ID. Charles got out of the vehicle, told Fate to get against the wall, and performed a pat down search. When the officers ran Fate's ID, they discovered a warrant for petit larceny in Clarkstown, New York and placed him under arrest.
The trip to the station lasted approximately five to seven minutes. Fate was handcuffed behind his back and fidgeted due to discomfort. Korba was sitting next to Fate in the back seat. Neither he nor Charles made any remarks about Fate's movements. When they arrived at the station, Korba quickly jumped out and pulled Fate out of the vehicle, believing that he had been trying to conceal something in his buttocks during the trip. (Korba Tr. 27:14-28:7.) Fate denies that he was trying to conceal anything or that he had any contraband on him. (Fate Tr. 67:10-21.)
Korba and Charles took Fate to the holding room, removed his handcuffs, and instructed him to take off his clothes. Fate complied and Korba searched his clothing. Korba claims that crack cocaine fell out of Fate's socks. (Korba Tr. 31:10-15; see also Charles Tr. 108:24-109:6 (noting that Korba said "something in reference to cocaine" when the crack fell out).) Fate denies this. (Fate Tr. 68:18-22.) Fate was then instructed to get up against the wall to be searched. (Id. 69:5-13.) Korba asked Fate to bend over and spread his buttocks so he could see if Fate was concealing anything. Fate did, and Korba claims that he saw a piece of plastic sticking out from between Fate's buttocks. (Korba Tr. 33:15-21.) Fate denies this as well. (Fate Tr. 80:3-10.) Fate was then "pushed in a way," "turned to turn around," and they "got to tousling" and Fate "was thrown to the ground." (Id. 69:5-18, 73:15-20.)
Three or four officers were now present in the holding cell. As Fate was on the ground, one officer had his right hand, another had his left hand, and Charles was behind him yelling "Give me your hands." (Id. 69:23-70:14.) Fate could not give him his hands, however, because they were restrained by the other officers. Fate admits that he was "struggling with them" because things were "happening so fast" and he was trying to get people off of him. (Id. 74:6-16.) Korba claims that during the struggle another baggy of cocaine "fell to the ground," and while Fate was on the ground he grabbed it — apparently somehow while his hands were still restrained — and shoved it into his mouth.
As part of the property confiscated from Fate, the officers logged $268.76 into evidence. (Holtzer Decl., Ex. Q ("Jail Log").) Fate claims, however, that he had been carrying approximately $2,700, which he had collected from friends and family members, including his wife, for the purpose of bailing out his son. The $268.76 was eventually returned to Fate.
Fate filed a pro se complaint against the Village and Officers Charles and Korba on September 27, 2011. (Dkt. No. 1.) The Court granted Fate's request for appointment of pro bono counsel on June 22, 2012. (Dkt. No. 21.) On January 4, 2013, Fate, through counsel, filed an amended complaint adding Officer Parwanta as a defendant and asserting § 1983 claims for violation of his rights under the First, Fourth, and Fourteenth Amendments. (Dkt. No. 40 ("Am.Compl.").) Defendants answered on January 18. (Dkt. No. 42.) Fate withdrew his First Amendment claims via letter dated April 19 and his Monell claims at a conference on May 15, 2013. (Dkt. Nos. 51 & 57.) Defendants filed the instant motion on September 20, 2013, seeking summary judgment on all but the excessive force claims. (Dkt. No. 72.)
Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56. A fact is material if it "might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a dispute is genuine if, considering the record as a whole, a rational jury could find in favor of the non-moving party, Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
On a motion for summary judgment, the party bearing the burden of proof at trial must come forward with evidence on each element of its claim or defense illustrating its entitlement to relief. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It cannot rely upon mere "conclusory statements, conjecture, or speculation" to meet its burden. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996) (citations omitted). If the party with the burden of proof makes
Generally, "[i]ssues that depend on the credibility of witnesses ... are to be decided by the jury." Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720 (1930). Consequently, when the material evidence essentially consists of contradictory testimony, summary judgment will not be appropriate. Only "in the rare circumstances" when there is "nothing in the record to support [the] plaintiff's allegations other than [his] own contradictory and incomplete testimony," and "even after drawing all inferences in the light most favorable to the plaintiff ... no reasonable person could believe [his] testimony," will summary judgment be warranted. Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir.2005) (citations and quotations omitted).
To prevail on his malicious prosecution claims, Fate must establish "(1) the initiation or continuation of a criminal proceeding against [him]; (2) termination of the proceeding in [his] favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for [Defendants'] actions." Russell v. Smith, 68 F.3d 33, 36 (2d Cir.1995). Defendants contend that Fate cannot establish any of these elements besides the initiation of a criminal proceeding against him.
With respect to the second element — termination in favor of the accused — Fate must present evidence that there was a determination in his favor "on the merits," or that "the failure to proceed `implies a lack of reasonable grounds for the prosecution.'" Russo v. New York, 672 F.2d 1014, 1019 (2d Cir.1982) (citation and quotations omitted). The only evidence he has provided, however, is a discrepancy between the Certificate of Disposition for the Spring Valley charges, which states "Dismissed," and the Certificate of Disposition for charges out of Spring Valley from 2006, which states "Dsm/Covrd-ByOtherPlea."
This case is directly controlled by Russo, where the Second Circuit ordered a new trial after a jury returned a verdict for the plaintiff on his malicious prosecution claim because the plaintiff had presented "no reason for the dismissal of the... charge."
Defendants also seek summary judgment on Fate's illegal seizure claim for lack of evidence. They note that neither Korba nor Charles recalls Fate's having more than a few hundred dollars on him, and the Jail Log, which Fate signed, indicates that only $286.76 was confiscated. (Korba Tr. 74:5-7; Charles Tr. 123:3-12; Jail Log.) Defendants also point to a letter from Fate's criminal attorney requesting the release of "the two hundred and fifty (250) dollars that was taken ... on October 31, 2009." (Holtzer Decl., Ex. P.) Fate argues that his attorney was simply asking for the amount that had been entered into evidence. (Fate Tr. 98:10-20.) He also cites testimony from his wife, Samantha Fate, indicating that she "learn[ed]" that Fate "had about $1,000" on him as "bail money for his son," and that she personally contributed to that amount and knew other family members had as well. (Parker Decl., Ex. 6 ("S. Fate Tr.") 55:16-56:19.)
Fate does not provide any explanation for why he signed the Jail Log. Moreover, his wife's testimony is contradictory. At one point she said that "he had $300.00 in
Defendants seek summary judgment on Fate's unreasonable strip search claim on the grounds that there was no constitutional violation, and even if there was, they are entitled to qualified immunity.
The question here is whether a police officer may force a man to hold his buttocks open and expose his anus — without any reason to suspect that he is hiding something there — when he is booked for a misdemeanor offense. Such searches were unconstitutional in this Circuit for more than twenty-five years. See Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir.2008) (citing Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986)); see also N.G. v. Connecticut, 382 F.3d 225, 232 (2d Cir.2004) (collecting cases establishing the same rule in the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits, many of which were unquestioned before 2012). Defendants argue that a recent Supreme Court decision, Florence v. Board of Chosen Freeholders, ___ U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012), abrogated that longstanding rule. Their motion requires the Court to determine whether Florence permits suspicionless strip searches of misdemeanor arrestees in a police station.
As a preliminary matter, it is essential to distinguish among types of searches that may be denoted by the umbrella term "strip search." One type of search requires that the subject remove all of his clothing and permit officers to inspect him while he stands, naked, in their presence. This is a "strip search." Another, more invasive type of search requires the subject to hold his buttocks open to allow officers to visually inspect his anus. Likewise, a female subject may be required to squat or hold her labia open to allow officers to visually inspect her vagina. The Court refers to this search — the type of search at issue in this case — as a "visual body cavity search." Finally, the most invasive type of search, which crosses from a visual to a manual inspection of the subject's body cavity, is a "manual body cavity search." This type of search is not at issue here.
The Fourth Amendment prohibits the government from conducting unreasonable searches. A search without prior judicial approval in the form of a warrant is presumptively unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Such searches are constitutional only if they fall within an exception to the warrant requirement. Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013); Katz, 389 U.S. at 357, 88 S.Ct. 507 ("[S]earches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.").
Warrantless strip searches of arrestees in police stations are commonly justified as
But officers are not permitted to search arrestees in any manner they please. All searches must be reasonable in "scope and manner of execution." King, 133 S.Ct. at 1970 (citing Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001)). An exception to the warrant requirement is not carte blanche; it merely changes the applicable standard from a rule of per se unreasonableness to a test balancing privacy interests against law enforcement interests. Id. (citing McArthur, 531 U.S. at 331, 121 S.Ct. 946; Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)); cf. Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (in the context of the automobile exception: "The word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears."). Even the leading cases defining the scope of searches incident to lawful arrest have been careful to specify that they do not condone searches with "extreme or patently abusive characteristics," Robinson, 414 U.S. at 236, 94 S.Ct. 467, or, put another way, searches that "violate the dictates of reason either because of their number or their manner of perpetration," Edwards, 415 U.S. at 808 n. 9, 94 S.Ct. 1234.
The privacy interest in one's naked body, and one's body cavities, is especially high.
The Supreme Court in Florence analyzed a detainee's strip search claims using a very different framework. The starting point in Florence was the principle that "[m]aintaining safety and order at [a detention center] requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face." 132 S.Ct. at 1515. In light of that concern, the Court reiterated the rule that "a regulation impinging on an inmate's constitutional rights must be upheld `if it is reasonably related to legitimate penological interests.'" Id. (quoting Turner v. Safely, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). Here it becomes essential to distinguish two different exceptions to the warrant requirement. The holding in Florence does not justify warrantless strip searches as incident to a lawful arrest. Instead, Florence justifies warrantless strip searches as required by a reasonable policy for maintaining order in the general population of a jail. This justification is a different exception to the warrant requirement, which the Second Circuit has characterized as a type of "special needs" search.
While Florence does not explicitly state the exception to the warrant requirement upon which it relies, the Court's analysis is entirely dependent on the holdings in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and Turner v. Safely, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), leading cases establishing the concept of a detainee safety search. Bell upheld a jail's policy of conducting visual body cavity searches of pretrial detainees following a contact visit with someone from outside the jail. 441 U.S. at 558-60, 99 S.Ct. 1861. Declining to apply the warrant requirement,
There is another important distinction between a search incident to a lawful arrest and a search pursuant to a jail regulation: the burden of proof is different. Florence applied the Turner standard (and holdings in subsequent cases) to raise the burden on pretrial detainees challenging a suspicionless search policy. Heeding Bell's warning that courts should "ordinarily defer to [the] expert judgment" of policymakers, Florence held that a pretrial detainee is required to produce "substantial evidence" that a jail's suspicionless search policy is unreasonable in order to succeed on a Fourth Amendment claim. Florence, 132 S.Ct. at 1517; see Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) (discussing convicted prisoners' claims: "The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it."). This standard is even more forgiving of suspicionless searches than the "free-form `reasonableness' inquiry" that applies to searches incident to a lawful arrest. Cf. King, 133 S.Ct. at 1981-82 (Scalia, J., dissenting). But such extraordinary deference to corrections officials depends entirely upon a weighty government interest: the unique challenge of maintaining order in a "crowded, unsanitary, and dangerous" jail. Florence, 132 S.Ct. at 1521.
These two distinctions — the justification for the search and the relevant burden of proof — separate searches incident to a lawful arrest from detainee safety searches. Both distinctions preclude Florence's application to a discretionary strip search in a police station. A police station is not a jail. In the absence of a large, potentially dangerous, and ever-changing population of detainees, there is a less compelling law enforcement interest to balance against the extreme intrusion of a strip search. The justification for the broad scope of the search, and the higher burden of proof, dissipates almost entirely in an empty holding cell. Accord, Gonzalez, 728 F.3d at 159 ("[T]he suspect was placed in a vacant cell, decreasing the concerns regarding jailhouse safety.") (citing Weber, 804 F.2d at 799); Hartline, 546 F.3d at 102 n. 5 ("[T]his case presents a markedly different set of circumstances than those addressed by the `special needs' standard applied to policies providing for routine strip searches in ... institutions housing large, dangerous, or vulnerable populations where introduction of secreted contraband from the outside raises a substantial risk of harm. No such special needs
The distinction drawn above is not merely academic. Courts are ordinarily careful to distinguish between detention in police stations and jails — and each of the opinions in Florence explicitly drew that distinction. The majority opinion clarified that the Court was not ruling "on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees." 132 S.Ct. at 1522. Other opinions were emphatic on this point. Justice Alito's concurrence specified that "[t]he Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches." Id. at 1524 (Alito, J., concurring). Chief Justice Roberts, too, noted that "the circumstances before [the Court]... include the fact[] that there was apparently no alternative ... to holding [Florence] in the general population." Id. at 1523 (Roberts, C.J., concurring). And Justice Breyer's dissenting opinion agreed that "[t]he case is limited to strip searches of those arrestees entering a jail's general population." Id. at 1525 (Breyer, J., dissenting). In short, all nine justices explicitly rejected the interpretation that the Defendants argue for here: that the decision in Florence applies to strip searches in a police station. Accord Ellsworth v. Wachtel, 2013 WL 140342, *5 (N.D.N.Y. Jan. 11, 2013) ("The Majority in Florence (along with both Concurrences and the Dissent) emphasized that this was a narrow holding and that the rule announced therein might not apply to arrestees who were not going to be introduced to the general jail or prison population.... Plaintiff [] was not searched prior to her introduction into a general jail population, and therefore falls under the exception to the rule in Florence."). But see Ochei v. Cnty. of N.Y., No. 10 Civ. 3718(AKH), 2013 WL 553514, *3 (S.D.N.Y. Feb. 14, 2013) (discussing stationhouse pat-down, during which an officer unzipped plaintiff's pants: "The Supreme Court has approved of more invasive searches following an arrest." (citing Florence)); Paulin v. Figlia, 916 F.Supp.2d 524, 532 (S.D.N.Y.2013) (discussing stationhouse strip search: "The [Florence] Court did not distinguish a search based on the type of facility in which it was conducted....").
There are other reasons that Florence does not permit the suspicionless visual body cavity search at issue in this case. It
Second, a judge had not decided whether to commit Fate to the general population of a jail. A majority of the Justices in Florence expressed worry that, although it may be reasonable to conduct suspicionless strip searches upon admission to the general population of a jail, it may not be reasonable to send some arrestees to jail at all. Justice Alito's concurrence explained:
Id. at 1524-25 (Alito, J., concurring) (citations omitted). Chief Justice Roberts's concurrence was not as direct, but he also noted that Florence had been arrested pursuant to a warrant, and there appeared to be no alternative to admitting him to the general population of a jail. Id. at
Finally, the search here was a discretionary one. There is no evidence or suggestion that the policymakers at the Spring Valley police department had concluded, based on their expertise, that it was appropriate to conduct a visual body cavity search of every arrestee detained at the station. This type of policy choice is the only choice contemplated by Bell, Turner, and Florence. Those cases all rely heavily on the premise that "[t]he task of determining whether a policy is reasonably related to legitimate security interests is `peculiarly within the province and professional expertise of corrections officials,'" and therefore, "courts should ordinarily defer to their expert judgment in such matters." Florence, 132 S.Ct. at 1517 (citing Block v. Rutherford, 468 U.S. 576, 584-85, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984); Bell, 441 U.S. at 548, 99 S.Ct. 1861). There was no such expert policy judgment here. Florence further justified the policy at issue based on correctional officers' "essential interest in readily administrable rules." 132 S.Ct. at 1522 (quoting Atwater v. City of Lago Vista, 532 U.S. 318, 347, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)). There is no rule to uphold here. Instead, Defendants ask the Court to uphold an individual officer's authority to select unlucky arrestees to be strip searched, for no articulable reason, at the officer's absolute discretion. But in the absence of individualized reasonable suspicion, the existence of a well-reasoned general policy is the only thing protecting an arrestee from an arbitrary (unreasonable) search of his person. Defendants' reading of Florence would effectively circumvent the requirement that searches incident to a lawful arrest must be reasonable in "scope and manner of execution." King, 133 S.Ct. at 1970 (citing McArthur, 531 U.S. at 331, 121 S.Ct. 946); see 3 LaFave § 5.3(c) (discussing discretionary searches of the body such as Breathalyzers or fingernail scrapings: "Quite obviously, none of these procedures can be characterized as `routine,'... for these procedures are not employed as a matter of course upon all arrested
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (citing Almeida-Sanchez v. United States, 413 U.S. 266, 270, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Camara v. Municipal Court, 387 U.S. 523, 532-533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). Regardless of whether stationhouse strip searches are incident to a lawful arrest or special needs searches, the discretion of the officer conducting the search must be limited in some meaningful way. Strip searches are an extraordinary invasion of privacy. Courts must demand factual justification supporting either the officer's exercise of his discretion or the policy pursuant to which he acted.
In short, Florence does not apply to discretionary visual body cavity searches at a police station. Such searches are still subject to the Hartline standard requiring individualized reasonable suspicion.
Having concluded that Florence does not apply to the search at issue in this case, the Court must determine whether there is a genuine issue of material fact regarding the constitutionality of the visual body cavity search. As discussed above, an officer must be able to justify the particular intrusion he makes — in other words, the fact that he chose to conduct a strip or visual/manual body cavity search — based on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. 1868; see Hartline, 546 F.3d at 100. To avoid falling prey to any particular officer's unjustified hunches, courts assess reasonable suspicion using an objective standard: would the circumstances lead a person of reasonable caution to believe that it was appropriate to order a strip or body cavity search? See Terry, 392 U.S. at 21-22, 88 S.Ct. 1868; Hartline, 546 F.3d at 100-101. In other words, "[d]o the circumstances of [the] arrest support a reasonable suspicion that [the arrestee]
Considering the evidence in the light most favorable to Fate, the answer in this case is no. Fate was arrested while he was walking to a deli to buy breakfast on a Friday morning. He had no reason to anticipate this arrest. Accord Florence, 132 S.Ct. at 1531 (Breyer, J., dissenting) ("[T]hose arrested for minor offenses are often stopped and arrested unexpectedly. And they consequently will have had little opportunity to hide things in their body cavities."). The arresting officers initially detained him for false personation and then arrested him pursuant to an outstanding warrant on a petit larceny charge. They did not find any contraband on his person during his initial detention and arrest. Nor did Fate have an opportunity to hide anything between his buttocks: Officer Korba was seated next to him in the backseat for the five-minute ride to the police station. While there is some factual dispute about whether Fate attempted to put his hands in his pants, a jury would be entitled to believe Fate's testimony that he did not do so — or to conclude that Korba still lacked reasonable suspicion that Fate had inserted something into his anal cavity. Cf. Bell, 441 U.S. at 578, 99 S.Ct. 1861 (Marshall, J., dissenting) ("To insert an object into the vaginal or anal cavity, an inmate would have to remove [his] jumpsuit, at least from the upper torso. [] Since contact visits ... are continuously monitored by corrections officers, such a feat would seem extraordinarily difficult. There was medical testimony, moreover, that inserting an object into the rectum is painful and `would require time and opportunity which is not available in the visiting areas,' [] and that visual inspection would probably not detect an object once inserted."). Moreover, as in Hartline, neither officer asked Fate whether he was concealing anything on his person. In short, a jury could find that Defendants had no reason to suspect that Fate was secreting weapons, additional identification, or evidence of the alleged larceny on his person. On this view of the evidence, not even a basic strip search was justified. Fidgeting when sitting in the backseat of a police car with one's hands handcuffed behind the back does not "g[i]ve strong support for an inference that [an arrestee] was secreting [anything] on [his] person, much less in [his] person." Hartline, 546 F.3d at 101. The facts in this case are even more compelling than in Hartline, where the arresting officers had, in fact, discovered marijuana in the plaintiff's car before arresting her for a Class B misdemeanor. Id. at 97-98, 101. Despite that discovery, the Second Circuit held:
Id. at 102. That holding applies here with full force. Compare Kaufman v. Rivera, 173 F.3d 844 (2d Cir.1999) (upholding jury verdict denying liability for strip search where plaintiff acted in a "bizarre, irrational and belligerent" manner, commented that she was able to grab a gun on a nearby table, and returned to the courtroom twice against officers' orders and despite the judge's admonition that he would not issue a decision that day), aff'g No. 95 Civ. 5667(JFK), 1998 WL 314744
"Qualified immunity protects government officials `from liability for civil damages as a result of their performance of discretionary functions, and serves to protect [them] from the burdens of costly, but insubstantial, lawsuits.'" Farid v. Ellen, 593 F.3d 233, 244 (2d Cir.2010) (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995)). Defendants are entitled to qualified immunity if their conduct did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Summary judgment based upon qualified immunity is appropriate if, even on the plaintiff's version of the facts, the defendants did not violate clearly established law. Timmins v. Toto, 91 Fed.Appx. 165, 166 (2d Cir. 2004) (citation omitted).
As discussed above, Hartline was the leading Second Circuit case discussing the standard governing strip searches in 2009. In addition to reiterating the reasonable suspicion standard, Hartline also held that this standard was clearly established as of 2003. 546 F.3d at 102.
For the same reasons that a jury would be entitled to find that the visual body cavity search was unreasonable, Defendants are not entitled to qualified immunity. Viewing the evidence in the light most favorable to Fate, a jury could conclude that there was only one justification for the visual body cavity search: Fate fidgeted while he was handcuffed in the backseat. In light of Hartline, no reasonable officer could conclude that a strip search was warranted on this basis alone. See also United States v. Asbury, 586 F.2d 973, 976-77 (2d Cir.1978) (listing factors commonly used to determine whether a strip search is reasonable, including "excessive nervousness" and "unusual conduct," and observing that "[i]n most of the cases upholding the legality of a strip search, the courts have relied upon a combination of the foregoing factors rather than upon any of them standing alone").
Finally, Defendants move for summary judgment as to all claims against Parwanta on the basis that there is insufficient evidence that he was personally involved in the search or the ensuing altercation. A plaintiff asserting § 1983 claims must allege the personal involvement of each defendant. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (citation omitted). Fate's sole allegation against Parwanta is that he "witnessed the events that occurred with respect to Plaintiff at the Spring Valley Police Station on October 31, 2009." (Am. Compl. ¶ 31.) There is sufficient evidence to support this allegation, and that Parwanta was physically involved in the struggle. Although Charles and Korba testified that they do not remember Parwanta being present during their interactions with Fate (Korba Tr. 34:15-20; Charles Tr. 117:9-19), both of their subject resistance forms indicate that Parwanta was a witness, and Charles's form states that Parwanta "assisted." (Parker Decl., Ex. 3.) Parwanta similarly testified that the forms reflect that he "assisted" in some capacity. (Holtzer Decl., Ex. H 30:23-31:6.) This is consistent with Fate's testimony that there were three to four officers present, including one who apparently matches Parwanta's description and restrained him while he was on the ground.
For the foregoing reasons, it is hereby ORDERED that Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Fate's malicious prosecution claims are dismissed; his claims for unreasonable search, illegal seizure of currency, and excessive force are not.
The Clerk of Court is directed to terminate the motion at docket number 72.
The parties are directed to confer and to submit letters by June 14, 2014 addressing
SO ORDERED.
