Bannister v. Perilli et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
NOVASHAWN BANNISTER,
Plaintiff,
v.
No. 1:24-CV-00183
OFFICER CHRISTOPHER PERILLI; 	(ECC/PJE)
JACOB KEARNES,
Defendants.
_____________________________________
APPEARANCES:
Novashawn Bannister
24-B-1305
Attica Correctional Facility
Box 149
Attica, New York 14011
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. Magistrate Judge
REPORT-RECOMMENDATION & ORDER
I. Background
On October 4, 2024, Magistrate Judge Hummel reviewed plaintiff’s original
complaint, granted plaintiff’s in forma pauperis application, and recommended that
plaintiff’s (1) Fourth Amendment excessive force claims be dismissed without prejudice
and with opportunity to amend to demonstrate defendants’ personal involvement,
(2) plaintiff’s Fourth Amendment unreasonable search and seizure, (3) Fourth
Amendment false arrest, (4) Fourteenth Amendment Due Process, (5) Deliberate
Indifference, and (6) Equal Protection claims be dismissed without prejudice and with
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leave to amend to demonstrate favorable termination pursuant to Heck v. Humphrey.
See Dkt. No. 10. On October 16, 2024, plaintiff filed an Amended Complaint. See Dkt.
No. 12. On November 5, 2024, the Court terminated the Report-Recommendation &
Order as moot. See Dkt. No. 13. On May 1, 2025, the undersigned reviewed plaintiff’s
amended complaint and recommended (1) plaintiff’s official capacity claims be
dismissed for lack of subject matter jurisdiction, (2) all of plaintiff’s federal claims be
dismissed pursuant to Heck, and (3) the Court decline to exercise supplemental
jurisdiction of plaintiff’s potential state law claim. See Dkt. No. 18. 	On May 15, 2025,
plaintiff filed objections. See Dkt. No. 19. On October 14, 2025, the Court adopted the
Report-Recommendation & Order as modified, dismissing with leave to amend
(1) Plaintiff’s Fourth Amendment excessive force claims, (2) official capacity claims
premised on Monell liability, (3) all remaining federal claims. See Dkt. No. 22. On
December 1, 2025, plaintiff filed a second amended complaint.1 Before the
undersigned for review is plaintiff’s second amended complaint.2
II. Second Amended Complaint
On a form complaint, plaintiff lists as defendants Christopher Perilli, K-9
Narcotics Enforcement Unit Officer; Jacob Kearns, Patrol Officer; and Warren County
Sheriff’s Office.3 See Dkt. No. 25 (“SAC”) at 2-3.
Plaintiff contends that on December 14, 2023, in Queensbury, New York, he was
a passenger in a car detained for a traffic stop. See SAC at 5. Plaintiff contends that
1 	Plaintiff filed his second amended complaint beyond the allotted forty-five days provided for in the
Court’s Memorandum-Decision & Order. See Dkt. No. 22. Out of special solicitude to plaintiff’s pro se
status, the Court will still consider it, despite the untimely filing.
2 	The Court has provided plaintiff with copies of unpublished cases cited herein except to the extent the
Court already provided copies of those cases earlier in this action. See Dkt. Nos. 10-1, 18-1.
3 As the undersigned has already laid out the standard for review pursuant to pursuant to 28 U.S.C.
§§1915(e)(2), 1915A, it need not repeat it here. See Dkt. Nos. 10 at 2-5.
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Perilli approached the car, “with seatbelt on and after a frisk,” “reached in between my
legs and slid his hand up to my penis and genitals and move them around as to looking
to feel something attached or on them.” Id. Perilli thereafter “forced me out of the car
with the seat-belt around my shoulder blade wrapped against my neck choking me.” Id.
Perilli “did multiple more searches at my penis and genitals, shaking them around.”
Plaintiff begged Perilli to stop, and Perilli told him, “‘he aint touch my dick yet’ &
continued to do so more.” Id. at 5-6. Perilli “sexually violated my dignity by inserting his
fingers into my rectum/anal cavity area as to be looking & feeling to see if drugs were
concealed their (sic) through the clothing.” Id. at 6.
“As Perilli was trying to enter my anal cavity he felt a weapon secreted their (sic)
and tried to force my butt cheeks apart aggressively to remove the weapon using
excessive force, yelling at me to unclench my butt.” SAC at 6. Plaintiff contends that
Perilli was trying to “make the gun fall down my pants to remove it from my anal cavity &
person to make a (sic) arrest.” Id. Perilli became angry, thinking plaintiff was
intentionally clenching and “excessively banged my head against their patrol car and
applied more force to my buttocks forcing them open trying to remove/dislodge
weapon.” Id. at 6-7.
Kearns “was ordered to pull down my pants & underwear down & use scissors to
cut weapon out.” SAC at 7. Kearns “questioned the directive made by his own officer
and still made a conscious decision to follow out a directive made that was clearly a
violation to my privacy.” Id. 	Plaintiff felt humiliated because there were bystanders “in
full view of the scenario taken (sic) place.” Id. Plaintiff also contends it was “cruel and
unusual to expose private parts to the public and to the cold winter afternoon
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temperature.” Id. Plaintiff contends that he was handcuffed during the searches. See
id.
Plaintiff further contends,
[t]he City of Warren County and Warren County Sheriff’s Department is (sic)
responsible for they’re (sic) officer’s (sic) actions because officers testified
that they werent (sic) trained in how to conduct this type of search, so PO
Perilli couldnt (sic) have known inserting his fingers into a person (sic) anal
cavity & forcing open entry was a violation to my 8 th Amendment, as well as
the groping of my penis & genitals.
Id. Similarly, plaintiff contends, Kearns “couldnt (sic) have known he was violating my
dignity by exposing my privacy to people & the cold weather because his agency failed
to train him in such field, (see attached testimony of officers not receiving training in
such field.” Id. at 8.
Plaintiff seeks $250,000 from “City of Warren County & the Warren County
Sherrif’s Office/Department” in “Monell damages . . . for their officer’s (sic) actions
because they failed to train them” for the defendants to be “removed from being patrol
officer’s (sic) to desk duties & partially pay out of personal checks for the damages
inflicted to me emotionally, physically & mentally[.]” SAC at 8. Elsewhere, plaintiff asks
for “person’s (sic) involved fired from job.” Id. at 12. Plaintiff’s form complaint further
states that his claim is “8 th Amendment violation, cruel & unusual punishment, sexual
misconduct, human dignity violations.” Id.
III. Review of Second Amended Complaint4
A. Standard of Review5
4 For the standard the undersigned applies in reviewing plaintiff’s pleading, reference is made to the May
1, 2025, Report-Recommendation & Order.
5 The Court does not provide copies of the unpublished cases cited in the Standard of Review section as
they were provided to plaintiff when he was served with the October 4, 2024, Report-Recommendation
and Order. See Dkt. No. 10-1.
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Section 1915 of Title 28 of the United States Code directs that, when a plaintiff
seeks to proceed IFP, “the court shall dismiss the case at any time if the court
determines that . . . the action or appeal (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, it is a court’s
responsibility to determine that a plaintiff may properly maintain his complaint before
permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks omitted); see also Hernandez v. Coughlin, 18 F.3d 133, 136
(2d Cir. 1994). As the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant 	is 	entitled 	to 	“special 	solicitude,” 	that 	a pro
se litigant’s submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our cases
have 	also 	indicated 	that 	we 	cannot 	read 	into pro 	se
submissions claims that are not “consistent” with the pro
se litigant’s allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that pro
se status “does not exempt a party from compliance with
relevant rules of procedural and substantive law[.]”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citations and
footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil
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Procedure [(‘Fed. R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019
WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)6 (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d
Cir. 1994)). Pleading guidelines are provided in the Federal Rules of Civil Procedure.
Specifically, Rule 8 requires the pleading to include:
(1) a short and plain statement of the grounds for the court's
jurisdiction . . .;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought. . .
FED. R. CIV . P. 8(a). Although “[n]o technical form is required,” the Federal Rules make
clear that each allegation contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d). “The purpose . . . 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.”
Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and
citations omitted). Allegations that “are so vague as to fail to give the defendants
adequate notice of the claims against them” are subject to dismissal. Sheehy v. Brown,
335 F. App’x 102, 104 (2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence – and each defense other than a denial – must
be stated in a separate count or defense.
6 The Court has provided plaintiff with copies of any unpublished cases cited within this Report-
Recommendation & Order.
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FED. R. CIV . P. 10(b). This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189
F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of a
defendant’s duty to shape a comprehensive defense and provides no meaningful basis
for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.
352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does
not comply with the requirement that it be short and plain, the court has the power, on
its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42
(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for
those cases in which the complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted).
This Court also has an overarching obligation to determine that a claim is not
legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000).
“Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal
theory [such as] when either the claim lacks an arguable basis in law, or a dispositive
defense clearly exists on the face of the complaint.’” Aguilar v. United States, Nos. 99-
MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)7 (quoting
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998)); see also
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory . . . or factual contentions lack an arguable basis.”).
7 Any unpublished cases cited within this Report-Recommendation & Order have been provided to
plaintiff.
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B. Fourth Amendment Excessive Force: Seatbelt and Head Banging Incidents
Plaintiff contends that Perilli forced him out of the vehicle in which he was a
passenger while he was still belted, resulting in the seatbelt wrapping around his neck
and choking him. See SAC at 5 ¶3. He further contends that Perilli “excessively bang[ed]”
his head against the patrol car. See id. at 6 ¶6-7 ¶8. Plaintiff appears to suggest that he
was handcuffed during these incidents. See id. at 7 ¶8.
In assessing whether force is reasonable, “a court (and a jury) must balance “the
nature and quality of intrusion on the individual's Fourth Amendment interests against the
countervailing government interests at stake.” 	Graham v. Connor, 490 U.S. 386, 396
(1989). 	This is a fact-specific inquiry which “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. “[O]n an
excessive force claim a plaintiff must present sufficient evidence to establish that the
alleged 	use 	of 	force 	is 	‘objectively 	sufficiently 	serious 	or 	harmful 	enough’ 	to 	be
actionable.” 	Washpon v. 	Parr, 561 	F.Supp.2d 394, 406 (S.D.N.Y. 	2008) 	(quoting
Cunningham v. Rodriguez, No. 01 Civ. 1123 (DC), 2002 WL 31654960 (S.D.N.Y. Nov.
22, 2002)).
Many courts in this Circuit have held that “that even minor injuries, including
scrapes and bruises, can support an excessive-force claim.” Jennings v. Decker, 359 F.
Supp. 3d 196, 207 (N.D.N.Y. 2019). 	However, “‘[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge's chambers,’ violates the Fourth
Amendment.” Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033
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(2d Cir.1973)). 	An officer’s “application of force is excessive, in violation of the Fourth
Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances
confronting [him], without regard to [his] underlying intent or motivation.” Maxwell v. City
of New York, 380 F.3d 106, 108 (2d Cir. 2004).
Plaintiff provides essentially no context surrounding his allegations of the seatbelt
or head banging incidents. 	Although plaintiff contends that he was “choked” by the
seatbelt, there are no allegations of any injury associated with being removed from the
vehicle while belted or his head being “banged against the patrol car.” 	SAC at 6-7 ¶6.
Although there is nothing in the SAC to suggest he was resisting, he also does not allege
that he was compliant with any directives. 	See Nogbou v. Mayrose, No. 07 CIV. 3763,
2009 WL 3334805, at *7 (S.D.N.Y. Oct. 15, 2009), aff’d, 400 F. App’x 617 (2d Cir. 2010)
(dismissing Fourth Amendment excessive force claim where, “[a]side from Plaintiff's
allegation that he was punched by the Officers, he alleges no injury, nor any additional
facts that would establish that [the defendant’s] use of force was unreasonable under the
circumstances.”). 	“To be sure, a plaintiff “need not prove ‘significant injury’ to make out
an excessive force claim[.]” Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir. 1999). But ‘a de
minimis use of force will rarely suffice to state a constitutional claim.’” McKinley v.
Crevatas, No. 20 CIV. 3606 (KPF), 2023 WL 4364182, at *16 (S.D.N.Y. July 6, 2023)
(quoting Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993)); see generally id.
McKinley, 2023 WL 4364182, at *16 (“[T]he Court rejects Plaintiff's contention that any
amount of force is excessive in the context of an unlawful arrest.”).
Accordingly, insofar as plaintiff claims that defendant Perilli used excessive force
when he (1) pulled plaintiff from the vehicle while still belted, or (2) when he banged
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plaintiff’s head against the patrol car, it is recommended that such claims be dismissed
for failure to allege any injury resulting from these alleged uses of excessive force.
A. 	Fourth Amendment Excessive Force: Unreasonable Searches
Plaintiff purports to bring an Eighth Amendment excessive force claim against
Perilli and Kearns and a Monell claim against Warren County and Warren County
Sheriff’s Department.8 See generally SAC. First, as this Court already advised,9
because plaintiff was not incarcerated at the time of the alleged incidents of excessive
force, his claims fall under the Fourth Amendment, not the Eighth Amendment.
Plaintiff’s complaint, liberally read, suggests that Perilli’s various searches of his
genital and buttocks area and Kearns strip search amounts to excessive force. Plaintiff
sets forth what appears to be three distinct searches: (1) multiple searches of his genital
area and buttocks over his clothing; (2) a strip search; and (3) potentially, a manual
body cavity search. Namely, plaintiff states that Perilli searched and “grop[ed]” his
genital area numerous times over his clothing. See SAC at 6 ¶4. He contends that
Perilli continued to search him even though his searching of plaintiff’s genital area “the
first 3 times revealed nothing.” Id.10 He further alleges that Perilli used language
suggesting he was doing so, at least in part, to taunt plaintiff. See id. at 5-6. Plaintiff
contends that Kearns, following an order from Perilli, pulled plaintiff’s “pants &
8 As plaintiff has not repleaded his other claims raised in his amended complaint, such claims are deemed
abandoned, including any claims against Officer Brandon Kommer. Compare SAC with dkt. no. 12; See
generally, e.g., Wenchun Zheng v. Gen. Elec. Co., No. 1:15-CV-1232 (TJM/CFH), 2016 WL 10859373, at
*8 n.11 (N.D.N.Y. Jan. 12, 2016), report and recommendation adopted sub nom. Zheng v. Gen. Elec. Co.,
2016 WL 447496 (N.D.N.Y. Feb. 4, 2016) (holding where pro se plaintiff did not replead claims in
amended complaint, such claims were deemed abandoned) (citing Dluhous v. Floating & Abandoned
Vessel, 162 F.3d 63, 68 (2d Cir. 1998) (additional citation omitted)). The Court already provided plaintiff a
copy of this unpublished case. See Dkt. No. 18 at 10 n.6; Dkt. No. 18-1.
9 See Dkt. No. 10 at 13; Dkt. No. 18 at 10.
10 	The undersigned observes that plaintiff did not raise this allegation in his prior two complaints. See
Dkt. Nos. 1, 12.
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underwear down and used scissors to cut weapon out,”11 exposing his genitals to the
public and to the cold air. Id. at 7.
“The Fourth Amendment prohibits the use of excessive force in making an arrest,
and whether the force used is excessive is to be analyzed under that Amendment's
reasonableness standard.’” Outlaw v. City of Hartford, 884 F.3d 351, 366 (2d Cir. 2018)
(quoting Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015)); Mickle v. Morin,
297 F.3d 114, 120 (2d Cir. 2002) ((“The Fourth Amendment, which protects against
unreasonable seizures, governs a claim that excessive force was used in connection
with an arrest.”). “The ‘proper application’ of this standard ‘requires careful attention to
the facts and circumstances of each particular case, including the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.’” Outlaw, 884 F.3d at 366 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
“The reasonableness determination must include consideration of the fact that law
enforcement officers often are forced to make quick decisions under stressful and
rapidly evolving circumstances rendering the calculation of what amount of force is
reasonable difficult.” Durr v. Slator, 558 F. Supp. 3d 1, 16 (N.D.N.Y. 2021) (citing
Graham, 490 U.S. at 396-97). “Relevant factors include the severity of the crime at
issue, whether the suspect posed an immediate threat to the safety of the officers or
others, and whether the suspect was actively resisting arrest.” Id. (citing Brown v. City
of New York, 798 F.3d 94, 100 (2d Cir. 2015)).
11 Once Kearns pulled down plaintiff’s pants and underwear, it is unclear why it would have been
necessary for him to cut the weapon out of plaintiff’s underwear with scissors. See SAC at 7 ¶7.
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Plaintiff contends that he was a “detained . . . passenger during a traffic stop”
when defendants conducted their search. SAC at 5. He appears to suggest that
defendants were searching him to look for drugs. See id. at 6.
1. Patdowns: Officer Perilli
As for the searches over plaintiff’s clothing – pat downs or pat frisks – “the
Supreme Court has long recognized that a search of a suspect may consist of ‘a careful
exploration of the outer surfaces of a person’s clothing all over his or her body . . .
including . . . [waistline] and back, the groin area about the testicles, and entire surface
of the legs down to the feet.’ The [Supreme Court] also acknowledged that such
searches may be ‘humiliating.’” Scalpi v. Amorim, No. 14-CV-2126 (KMK), 2018 WL
1606002, at *18 (S.D.N.Y. Mar. 29, 2018) (quoting Lamore v. Vermont, No. 2:12-CV-59,
2013 WL 3560969, at *4 (D. Vt. July 11, 2013) (quoting Terry v. Ohio, 392 U.S. 1, 16,
17 n.13, 25 (1968)). “However, ‘[n]ot every embarrassment, humiliation, or
psychological discomfort amounts to a constitutional violation.’” Id. (quoting Arnold v.
Westchester Cnty., No. 09 Civ. 3727 (JSR)(GWG), 2012 WL 336129, at *11 (S.D.N.Y.
Feb. 3, 2012)).
Although plaintiff contends that Perilli “insert[ed] his fingers into my rectal/anal
cavity area[,]”12 he also alleges that Perilli “insert[ed] his fingers into my rectal cavity
area as to be looking & feeling to see if drugs were concealed their (sic) through the
clothing.” SAC at 6 ¶4. Indeed, in the following paragraph, plaintiff refers to Perilli
“trying to enter my anal cavity” whereupon he “felt a weapon secreted their (sic) and
12 “[A] ‘manual body cavity search’ occurs when the police put anything into a suspect's body cavity, or
take anything out.” Gonzalez v. City of Schenectady, 728 F.3d 149, 158 (2d Cir. 2013) (quoting People v.
Hall, 10 N.Y.3d 303, 306-07 (2008)). A manual body cavity search is the “the most invasive” type of strip
search. Fate v. Charles, 24 F.Supp.3d 337, 344 (S.D.N.Y. 2014).
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tried to force my butt cheeks apart aggressively.” Id. (emphasis added). He refers to his
underwear being “tight skin fitting and has a (sic) area in anal cavity that can act as a
’pocket’ that was preventing [Perilli] from removing it.” Id. Plaintiff also states that Perilli
“tried” to “enter his anal cavity” but he had a weapon between his butt cheeks that was
blocking his anus. Id. ¶ 5 (emphasis added). This language suggests that Perilli was
searching plaintiff’s buttocks and the area around his rectum from outside of his
clothing. 	Later in the complaint, however, plaintiff states, “P.O. Perilli couldnt (sic) have
known inserting his fingers into a person (sic) anal cavity & forcing open entry was a
violation . . . [,]” again indicating that Perilli did, in fact, insert his fingers into plaintiff’s
anus. Dkt. No. 25 at 8¶9.
Here, although plaintiff appears to provide a valid13 reason for the pat down
searches, he does imply that the searches over his clothing, even if reasonable initially,
became unreasonable because he was continuously searched even after no drugs were
found. Plaintiff arguably suggests that defendant Perilli also searched his genital area
out of an intent to humiliate him because he searched that area more times than was
necessary – “groped” his penis “multiple times after the first three times revealed
nothing[,]” “shaking” his “penis and genitals” while taunting him, saying, “he aint touch
my dick he aint touch my dick yet” while plaintiff was “beg[ging]” him to stop. SAC at 5-
6. Thus, plaintiff suggests Perilli’s intention behind at least the latter pat down searches
was to humiliate plaintiff. Accordingly, at this early stage and with special solicitude in
13 The undersigned can make no assessment as to whether officers had reasonable suspicion to perform
pat downs of plaintiff nor does plaintiff make any argument about that as the second amended complaint
is devoid of the reasons for why plaintiff was searched absent a claim that Perilli was looking for drugs.
Plaintiff does not allege why the officers believed plaintiff may have drugs on his person nor provide any
other context. Given plaintiff’s pro se status, that this case is at its earliest stage, and the Court is on its
third review of plaintiff’s complaint, the undersigned will read the SAC liberally to assume that plaintiff is
alleging that defendants suspected plaintiff of having drugs concealed on or in his body.
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mind, it is recommended that a response be required to plaintiff’s Fourth Amendment
claim as it relates to Perilli performing unreasonable pat down searches.14
2. Strip Search: Officer Kearns
“[A] ‘strip search’ occurs when a suspect is required to remove his clothes.”
Sloley v. VanBramer, 945 F.3d 30, 36 (2d Cir. 2019) (quoting Gonzalez v. City of
Schenectady, 728 F.3d 149, 158 (2d Cir. 2013)). “Courts both in this Circuit and across
the country agree with the following two propositions: first, a strip search violates the
Fourth Amendment if it is conducted in an unreasonable place and manner.” Towns v.
Stannard, 431 F. Supp. 3d 44, 68 (N.D.N.Y. 2019) (citing Wilson v. Aquino, 233 F.
App’x 73, 76 (2d Cir. 2007)). “Second, that ‘it is unreasonable to conduct a strip search
in full view of the public without exigent circumstances.’” Id. (quoting Cotto v. City of
Middletown, 158 F. Supp. 3d 67, 85-86 (D. Conn, 2016)). “A strip search ‘in a public
place, even if justified by reasonable suspicion, has been uniformly subject to close
scrutiny, and has generally required a clear showing of exigent circumstances to justify
such an extreme invasion of privacy.’” Id. at 64-65 (quoting Cotto, 158 F. Supp. 3d at
80). “While pulling back someone's pants to inspect the inside of their pants in public
has been found reasonable, a partial strip search in a public place where passersby can
see a person’s naked body is not reasonable absent serious safety concerns.” Moore v.
Hearle, 639 F. Supp. 2d 352, 357 (S.D.N.Y. 2009).
In the context of a strip search or body cavity search, a plaintiff may make out a
claim of excessive force under the Fourth Amendment if a police officer engages in
“sexual misconduct” or if it is unrelated to any legitimate penological goal. Santiago v.
14 	The undersigned makes no finding as to whether such claim could survive a properly-filed and
supported dispositive motion.
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City of Yonkers, No. 13-CV-1077, 2015 WL 6914799, at *6 (S.D.N.Y. Oct. 30, 2015);
see also Granger v. Santiago, No. 19-CV-60, 2019 WL 1644237, at *7 (D. Conn. Apr.
16, 2019) (permitting excessive force claim to proceed where the defendant “conducted
the manual body cavity search for the purpose of humiliating [the defendant] rather than
for a legitimate penological purpose”).
Here, Kearns’ act of pulling down plaintiff’s pants and underwear in public,
exposing his buttocks and genitals as plaintiff describes constitutes a strip search.15 As
for the reasonableness of the strip search, the second amended complaint appears to
contend that Perilli directed Kearns to perform a strip search because he was “having a
difficult time removing the weapon.” SAC at 6¶6. Although plaintiff concedes that the
purpose of strip search was to remove the weapon, which would suggest a valid reason,
liberally read and with due solicitude, plaintiff’s complaint alleges that the manner of the
search – on a public street in view of onlookers – was unreasonable. Taking the
allegation as true, it is arguable that this conduct was unreasonable under the
circumstances as plaintiff suggests he was handcuffed during the strip search and not
an immediate threat to officers or the public. 	See SAC at 7 (“[t]he whole ordeal I was
handcuffed[.]”). Thus, it is at least arguable that, even if defendants believed or were
aware that he had a weapon concealed inside of his underwear, if plaintiff were
handcuffed and not attempting to flee or otherwise resist, plaintiff was not posing an
immediate threat to defendants warranting the public strip search.
15 Plaintiff does not suggest that Kearns acted with an intent to humiliate.
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16
Out of an abundance of caution and mindful of the Second Circuit’s instruction
that a pro se plaintiff’s pleadings must be liberally construed, see, e.g., Sealed Plaintiff,
537 F.3d at 191, it is recommended that a response be required to plaintiff's Fourth
Amendment claim with respect to the public strip search.
3. Manual Body Cavity Search: Perilli
As noted, supra, plaintiff’s complaint appears contradictory in that he seems to
state both that Perilli actually inserted his fingers into his anus and that Perilli attempted
to insert his fingers into his anus or felt plaintiff’s anal area over his clothing. Compare
SAC at 25 ¶5 with id. at 7¶9.16 Out of special solicitude to pro se plaintiff, the
undersigned interprets the SAC as alleging that Perilli performed a manual body cavity
search.
“[A] ‘manual body cavity search’ occurs when the police put anything into a
suspect's body cavity, or take anything out.” Sloley, 945 F.3d at 36-37 (quoting
Gonzales, 728 F.3d at 158). Plaintiff appears to contend that the manual body cavity
search occurred because Perilli was searching for drugs and/or in an attempt to remove
a weapon that he eventually felt during one of the pat down searches. Although the
timeline is unclear, it appears plaintiff is contending that Perilli performed the manual
body cavity search after plaintiff was removed from the vehicle, i.e., in public. Plaintiff is
also contending that Perilli performed the manual body cavity search while plaintiff was
handcuffed. See SAC at 7 (“[t]he whole ordeal I was handcuffed[.]”).
16 Further, he suggests that this manual body cavity search occurred before the strip search, which also
seems contradictory – as it is unclear why the strip search to remove the weapon would be needed if
Perilli had actually been able to insert his fingers into plaintiff’s anus.
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17
Plaintiff acknowledges that Kearns recovered a weapon during the strip search.
Yet, it is not clear at what point Perilli and Kearns learned that plaintiff had a weapon
concealed in his underwear, making it impossible to review whether they had
reasonable suspicion to believe plaintiff had a weapon or contraband before the manual
body cavity search occurred. The Second Circuit has long held that the Fourth
Amendment prohibits “strip/body cavity searches” of the kind at issue here “unless the
officials have a reasonable suspicion that the arrestee is concealing weapons or other
contraband based on the crime charged, the particular characteristics of the arrestee,
and/or the circumstances of the arrest.” Tisdale, 442 F. Supp. 3d at 575 (quoting Weber
v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)); Schmerber v. California, 384 U.S. 757, 770
(1966) (“intrusions beyond the body's surface are forbidden by the Fourth Amendment
in the absence of clear indication that the evidence will be found”). Plaintiff arguably
suggests the search and the nature in which it was performed was unreasonable as he
was handcuffed.
As the Court does not have before it sufficient detail about the circumstances of
the search/arrest,17 the undersigned cannot yet assess whether the officers had
reasonable suspicion plaintiff was concealing contraband or a weapon inside of a body
cavity before Perilli performed the alleged manual body cavity search. See Sloley, 945
F.3d at 38; see also Sanchez v. Bonacchi, 799 F. App'x 60, 62 (2d Cir. 2020) (summary
order) (“A manual body cavity search, which is more intrusive than a visual search, must
17 It is unknown to the undersigned whether plaintiff was under arrest at the time of the manual body
cavity search or strip search (rather than after), and, if so, the reason for the arrest. See generally
McKinley v. Crevatas, No. 20 CIV. 3606 (KPF), 2023 WL 4364182, at *14 (S.D.N.Y. July 6, 2023) (“To be
clear, ‘being arrested for a narcotics offense does not automatically give rise to a reasonable suspicion to
justify a strip search and visual cavity inspection,” and certainly does not justify a manual cavity
inspection.’”) (citation omitted)).
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18
at minimum be supported by the same reasonable suspicion as a visual cavity search.”)
(citing Birchfield v. North Dakota, 579 U.S. 438, 460 (2016)).18 Plaintiff suggests that
there were no exigent circumstances due to his being handcuffed. Assuming it is the
case that he was handcuffed and not resisting, out of an abundance of caution, due to
plaintiff’s pro se status, the undersigned recommends that plaintiff’s Fourth Amendment
claim, premised on the allegation that Perilli performed an unreasonable manual body
cavity search, proceed.19
C. Monell20
1. Warren County Sheriff’s Department
To the extent plaintiff names the Warren County Sheriff’s Department, such
claims must be dismissed. “Municipalities are considered ‘persons’ who can be sued
under § 1983.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). “A police
department is an administrative arm of the municipal corporation.” Leland v. Moran, 100
F. Supp.2d 140, 145-46 (2000) (citing Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y.
18 See Richardson v. City of Rutland, No. 2:16-CV-55-CR-JMC, 2016 WL 11190471, at *4 (D. Vt. Dec. 15,
2016):
“The officer must be able to justify the particular intrusion he makes—in other words, the
fact that he chooses 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.’” Fate, 24 F. Supp. 3d at 346 (quoting Terry, 392
U.S. at 21). Reasonable suspicion is evaluated based on the “totality of the circumstances.”
Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 271 (S.D.N.Y. 2002) (quoting
United States v. Arvizu, 534 U.S. 266, 273 (2002)). That is, the court must consider the
facts allegedly giving rise to reasonable suspicion together, rather than viewing them “in
isolation from each other.” Arvizu, 534 U.S. at 274.
19 	As with the other claims the undersigned recommends proceed, the undersigned makes no finding as
to whether such claims would survive a properly-supported motion to dismiss or motion for summary
judgment.
20 As a threshold issue, plaintiff attaches to his complaint three pages of an undated transcript. Plaintiff
provides no context for this transcript. However, it is clear from the heading, that it is a cross examination
of Jacob Kearns and refers to the apparent event underlying this complaint. It is unknown whether this
transcript is from plaintiff’s underlying criminal trial relating to the gun recovered from the search. Plaintiff
has not indicated that he pursued other litigation against these defendants regarding the alleged incidents
underlying this complaint. If he has, review of the claims in this case may be barred by res judicata
and/or Rooker-Feldman.
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19
1999)). Thus, plaintiff can only proceed against the municipality itself, Warren County,
as “the real party in interest.” Id. Accordingly, it is recommended that all claims against
Warren County Sheriff’s Department be dismissed.
2. Failure to Train
Liberally read, plaintiff contends that Warren County is liable for Perilli and
Kearn’s alleged violations of his Fourth Amendment rights because they were not
properly trained in how to perform strip and manual body cavity searches. See SAC at
8. In Monell, the Supreme Court of the United States found that municipal liability
existed “where that organization's failure to train, or the policies or customs that it has
sanctioned, led to an independent constitutional violation.” Segal v. City of New York,
459 F.3d 207, 219 (2d Cir. 2006). “Monell does not provide a separate cause of action
for the failure by the government to train its employees; it extends liability to a municipal
organization where that organization's failure to train, or the policies or customs that it
has sanctioned, led to an independent constitutional violation.” Id. “A municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a
failure to train.” Jackson v. Nassau Cnty., No. 18-CV-3007(JS)(AYS), 2024 WL
4252047, at *33 (E.D.N.Y. Sept. 20, 2024) (quoting Connick v. Thompson, 563 U.S. 51,
61 (2011)); see also Vasquez v. City of New York, No. 20-CV-4641 (ER), 2023 WL
8551715, at *5 (S.D.N.Y. Dec. 11, 2023) (quoting Greene v. City of New York, 742 F.
App’x 532, 536 (2d Cir. 2018) (summary order) (“The Supreme Court and Second
Circuit consider a § 1983 claim against a municipality to be ‘at its weakest’ when it relies
on such an alleged failure to train or supervise.”). “[A] successful Monell claim based on
a failure to train theory must show that “the need to act [was] so obvious, and the
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20
inadequacy of current practices so likely to result in a deprivation of federal rights.”
Tirado v. City of New York, 19-CV-10377 (LAK)(SN), 2021 WL 11646299, at *11
(S.D.N.Y. Jan. 25, 2021) (quoting Reynolds v. Giuliani, 506 50 F.3d 183, 192 (2d Cir.
2007)).
“The Second Circuit has identified three requirements to determine whether a
‘failure to train . . . constitutes deliberate indifference.’” Jackson, 2024 WL 4252047, at
*33 (quoting Jenkins v. City of N.Y., 478 F.3d 76, 94 (2d Cir. 2007)).
The plaintiff must show: “[f]irst . . . that [the] policymaker knows to a moral
certainty that her employees will confront a given situation . . . [;] Second,
. . . the plaintiff must show that the situation either presents the employee
with a difficult choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling the situation.
Finally, the plaintiff must show that the wrong choice by the city employee
will frequently cause the deprivation of a citizen's constitutional rights.”
Id. (quoting Jenkins, 478 F.3d at 94). “In the case of a failure to train, a court may draw
the inference that a municipal policy exists from ‘evidence that the municipality so failed
to train its employees as to display a deliberate indifference to the constitutional rights of
those within its jurisdiction.’” Tirado, 2021 WL 11646299, at *9 (quoting Ricciuti v.
N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).
“‘[C]onclusory allegations that a municipality failed to train and supervise its
employees’ are insufficient to state a Monell claim absent supporting factual
allegations.” Wilson v. Cnty. of Onondaga, No. 5:20-CV-1489 (DNH/TWD), 2022 WL
3141764, at *9 (N.D.N.Y. Apr. 21, 2022), report and recommendation adopted, No.
5:20-CV-1489, 2022 WL 2965584 (N.D.N.Y. July 27, 2022) (quoting Davis v. City of
New York, No. 07 Civ. 1395, 2008 WL 2511734, at *6 (S.D.N.Y. June 19, 2008)). “A
pattern of similar constitutional violations by untrained employees is ‘ordinarily
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21
necessary’ to demonstrate deliberate indifference for purposes of failure to train.”); see
Connick v. Thompson, 563 U.S. 51, 62 (2011) (“A pattern of similar constitutional
violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate
indifference for purposes of failure to train.”); see also Uvino v. Wyant, No. 9:24-CV-
1460 (GTS/PJE), 2026 WL 936164, at *5 (N.D.N.Y. Apr. 7, 2026) (“Simply put, the third
amended complaint asserts municipal liability claims based solely on conclusory
allegations of a custom or policy, which is insufficient to state a claim upon which relief
may be granted.”); Bernazard v. Koch, No. 15-CV-0642 (JG)(LB), 2015 WL 13948775,
at *3 (E.D.N.Y. June 5, 2015) (“Bernazard describes isolated conduct by a single actor
and invokes terms of art utilized in Monell claims such as “policy” and “failure to train,”
but fails to supply any facts other than his own arrest tending to show that the City
caused any claimed constitutional violation. The absence of any facts supporting an
unconstitutional policy, practice, or custom by the City, or a failure to supervise or train,
precludes Monell liability.”). Policymakers’ “continued adherence to an approach that
they know or should know has failed to prevent tortious conduct by employees may
establish the conscious disregard for the consequences of their action—the deliberate
indifference—necessary to trigger municipal liability.” Connick, 563 U.S. at 62 (quoting
Bd. Of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997) (internal
quotation marks omitted)).
Here, plaintiff states that Warren County “failed to train their officers.” SAC at
5¶1. He further contends that Warren County “is responsible for they’re (sic) officer’s
(sic) actions because officers testified that they werent (sic) trained in how to conduct
this type of search.” Id. at 25 ¶9. Plaintiff cites to testimony from defendant Kearns
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22
stating that he never received training in performing any strip searches or manual body
cavity searches. See SAC at 9-11. Plaintiff’s complaint sets forth no similar incidents of
improper pat down, strip, or manual body cavity searches by Warren County officers.
See Connick, 563 U.S. at 62; but see Brown v. City of Utica, No. 6:17-CV-01190
(BKS/ATB), 2020 WL 1046022, at *11 (N.D.N.Y. Mar. 4, 2020) (quoting Connick, 563
U.S. at 63) (“Notably, the Supreme Court has “left open the possibility that, ‘in a narrow
range of circumstances,’ a pattern of similar violations might not be necessary to show
deliberate indifference” because “the unconstitutional consequences of failing to train
could be so patently obvious that a city could be liable under § 1983 without proof of a
pre-existing pattern of violations.”). Plaintiff does not contend that the failure to train
was connected to an unconstitutional municipal policy. See Oklahoma City v. Tuttle,
471 U.S. 808, 823-24 (1985) (plurality opinion) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of
the incident includes proof it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal policymaker.”).
A failure to train constitutes a policy or custom that is actionable under §
1983 only where “in light of the duties assigned to specific officers or
employees[,] the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers . . . can reasonably be said to have been deliberately
indifferent to the need.” City of Canton, 489 U.S. at 390.
Seward v. Antonini, No. 20-CV-9251 (KMK), 2023 WL 6387180, at *25 (S.D.N.Y. Sept.
29, 2023).
Here, although plaintiff’s failure to train theory is conclusory, he does support his
claim with testimony (albeit, from what legal proceeding, it is unknown) from defendant
Kearns stating that he received no training in strip searches of manual body cavity
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23
searches. It is potentially possible that plaintiff’s case may be the “‘rare’ instance of
municipal liability for failure to train based on a single incident.’” Brown v. City of Utica,
2020 WL 1046022, at *11; see generally Dempsy v City of Rochester, 761 F. Supp. 3d
607, 626-27 (W.D.N.Y. Jan. 2025) (denying summary judgment where city policymakers
knew “to a moral certainty” that officers would encounter citizens’ dogs while on duty
such that the need to train officers on use of lethal force on pet dogs was so obvious,
the failure to so train could be characterized as deliberate indifference).
Accordingly, insofar as plaintiff seeks to raise a Monell claim against Warren
County for failure to train defendants Perilli and Kearns, it is recommended that such
claim proceed.21
D. Injunctive Relief
To the extent plaintiff seeks defendants to be fired from their jobs, this Court
cannot award such relief. See Daniels v. Connor, 5:25-CV-1100 (GTS/PJE), 2026 WL
1430177, at *5 n.8 (N.D.N.Y. May 21, 2026) (citing cases). Accordingly, insofar as
plaintiff seeks this relief, it is recommended it be dismissed.
IV. Conclusion
Wherefore, for the reasons set forth herein, it is hereby
RECOMMENDED, that plaintiff’s Fourth Amendment excessive force claim
against defendant Perilli relating to removing plaintiff from the vehicle such that the
seatbelt choked plaintiff and banging plaintiff’s head on the patrol car, dkt. no. 25, be
DISMISSED; and it is further
21 	The undersigned again makes no finding whether this claim could survive a properly-supported
dispositive motion.
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24
RECOMMENDED, that plaintiff’s Fourth Amendment excessive force claim
against Perilli alleging unreasonable pat down searches, dkt. no. 25, proceed; and it is
further
RECOMMENDED, that plaintiff’s Fourth Amendment excessive force claim
against Perilli alleging an unreasonable manual body cavity search, dkt. no. 25,
proceed; and it is further
RECOMMENDED, that plaintiff’s Fourth Amendment excessive force claim
against Kearns alleging an unreasonable strip search, dkt. no. 25, proceed; and it is
further
RECOMMENDED, that plaintiff’s claim against Warren County Sheriff’s
Department, dkt. no. 25, be DISMISSED; and it is further
RECOMMENDED, that plaintiff’s claim against Warren County, pursuant to
Monell, for failure to train, dkt. no. 25, proceed; and it is further
RECOMMENDED, that plaintiff’s request for injunctive relief, dkt. no. 25, be
DISMISSED; and it is
ORDERED, that the Clerk serve this Report-Recommendation & Order on
plaintiff in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has fourteen (14) 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 (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,
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89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15, 16
(2d Cir. 1999)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 72 & 6(a).22
Dated: June 10, 2026
Albany, New York
22 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail,
three (3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen
(17) days from the date the Report-Recommendation and Order was mailed to you to serve and file
objections. See F ED. R. C IV . 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. See id. § 6(a)(1)(c).
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