Moore v. Maye et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HORACE MOORE,
Plaintiff,
9:24-CV-1105
v. 	(LEK/DJS)
MARK MAYE, et al.,
Defendants.
APPEARANCES: 	OF COUNSEL:
HORACE MOORE
Plaintiff, pro se
10-A-5450
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
HON. LETITIA JAMES 	ALEXANDRA L. GALUS, ESQ.
New York State Attorney General 	Assistant Attorney General
Attorney for Defendants
The Capitol
Albany, New York 12224
DANIEL J. STEWART
United States Magistrate Judge
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 1 of 14

2
REPORT-RECOMMENDATION and ORDER1
Plaintiff brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his rights while he was held in custody at Clinton Correctional
Facility (“Clinton C.F.”). 	Dkt. No. 1, Compl. 	Defendants Lt. Allen, C. Liberty, J.
Makee, and M. Peck have now moved, prior to answering the Complaint, to partially
dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). 	Dkt. No. 35.
Plaintiff opposed the Motion. Dkt. No. 44, Pl.’s Opp. 	Defendants filed a reply. 	Dkt.
No. 45.2
For the reasons that follow, the Court recommends that the Motion to Dismiss be
DENIED.
I. BACKGROUND
Plaintiff Horace Moore (“Moore” or “Plaintiff”) alleges in his Complaint that his
Eighth Amendment and Fourteenth Amendment rights were violated by Lt. Allen (“Lt.
Allen”), C. Liberty (“Liberty”), J. Makee (“Makee”), M. Peck (“Peck”), Mark Maye
(“Maye”), Leigh Martin (“Martin”), and Steven Wood (“Wood”). See generally Compl.
Defendants Liberty, Makee, and Peck seek dismissal of Eighth Amendment claims
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
2 Plaintiff has also filed a Motion for a Clerk’s Entry of Default related to Defendants’ purported failure to appear
in this action. Dkt. No. 23. Defendants, however, have now appeared and so the Court recommends that this
Motion be denied.
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 2 of 14

3
related to a strip search. Dkt. No. 35-1, Defs.’ Mem. of Law at pp. 3-7. Defendant Lt.
Allen seeks dismissal of the Fourteenth Amendment claim against him. Id. at pp. 7-9.
According to the Complaint, on March 16, 2022 at Clinton C.F., Moore was taken
out of his cell—A-Block 3-21—by Correctional Officers Maye and Martin. Compl. at
p. 5. 	Plaintiff claims this occurred for reasons unknown to him. 	Id. 	Plaintiff claims
that he was “in fear for his life” and that he was the only individual taken out of their
cell on a Corrections Officer (“C.O.”) training day. 	Id. 	Following the removal of
Plaintiff from his cell, he was pepper-sprayed in the Lower-F block draft room by
Officer Wood. Id. Further, during this incident, Moore was grabbed by the neck by C.O.
Maye, thrown to the ground, and kicked in the ribs. 	Id. 	Plaintiff stated that while he
was on the ground he was “beaten all over the body” with baton sticks by C.O.s Maye,
Martin, Wood and about 6 to 7 other unknown officers. Id. Additionally, Moore alleged
that C.O. Maye ripped his dreadlocks out and made comments regarding “did they get
a souvenir,” joking about Plaintiff’s dreadlocks while he continued to be beaten by other
C.O.s. Id.
Following this incident, Plaintiff was handcuffed and taken to the Facility
Hospital by Liberty and Makee who were being supervised by Sergeant (“Sgt.”) Peck.
Id. Plaintiff claimed that at Clinton C.F.’s Hospital he continued to be beaten and was
placed in a room with no cameras. Id. While Plaintiff was in this room he alleges that
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 3 of 14

4
Sgt. Peck ordered Makee and Liberty to conduct a strip search. See Compl. at pp. 5-6.
Further, Plaintiff stated that before the strip search his face was slammed into the “corner
of a wall,” and then his “pants and boxers were pulled down” while he was “going in
and out of consciousness.” Id. Plaintiff claimed he felt the C.O.’s “fingers going in and
out” of his anus while Makee and Liberty asked, “where is the weapon.” See Compl. at
6. 	While Moore was in an observation room he threw up blood. 	Id. 	On March 22,
2022, Plaintiff alleges that he was released from the observation cell because there was
“no weapon” but he was then placed in the facility’s Special Housing Unit (“SHU”) for
misbehavior charges unknown to him. Id.
On March 23, 2022, Plaintiff was served with three Tier III misbehavior reports
alleging infractions including Assault on an Inmate – Fighting, Violent Conduct, and
Creating a Disturbance. Id. The first misbehavior report against Plaintiff was brought
due to an identification through the use of a photo array, where an inmate identified
Plaintiff as the person that assaulted another inmate. 	See id. at p. 7. 	The second
misbehavior report makes allegations that Plaintiff ran from officers escorting him and
allegedly kicked a corrections officer. Id. The third misbehavior report alleged that on
March 16, 2022, Moore had an X-ray taken and there was a foreign body located in his
body. Id. Lt. Allen found Moore guilty of multiple charges. Id. at pp. 7-8. The penalties
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 4 of 14

5
that were imposed included 707 days in SHU, 707 days loss of packages, and 707 days
loss of commissary. Id. at p. 8.
II. LEGAL STANDARD
On a motion to dismiss, the allegations of the complaint must be accepted as true.
See Cruz v. Beto, 405 U.S. 319, 322 (1972). 	The trial court’s function “is merely to
assess the legal feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d
Cir. 1980). “The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” 	Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183
(1984).
The Court is bound to give the plaintiff the benefit of every reasonable inference
to be drawn from the “well-pleaded” allegations of the complaint. 	See Retail Clerks
Int’l Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963).
Nevertheless, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). 	Therefore, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” 	Id. (citation omitted). 	A
motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the Plaintiff’s
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 5 of 14

6
complaint includes “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at
697.
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard “is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. In this respect, to survive dismissal, a plaintiff
“must provide the grounds upon which his claim rests through factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 555). Thus, in spite of the deference the court is bound to give to Plaintiff’s
allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts
[which he or she] has not alleged or that the defendants have violated the . . . laws in
ways that have not been alleged.” 	Assoc. Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether
a plaintiff has “nudged [his] claims . . . across the line from conceivable to plausible,”
entails a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. at 679-80.
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 6 of 14

7
Where, as here, the complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint must state
a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
III. DISCUSSION
A. Plaintiff’s Eighth Amendment Claim
1. Sexual Assault
“A corrections officer’s intentional contact with an inmate’s genitalia or other
intimate area, which serves no penological purpose and is undertaken with the intent to
gratify 	the 	officer’s 	sexual 	desire 	or 	humiliate 	the 	inmate, 	violates 	the 	Eighth
Amendment.” 	Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015). 	Searches of
inmates, however, “are a common incident in prison life.” 	Daum v. Devlin, 2024 WL
4133824, at *3 (N.D.N.Y. July 11, 2024), report and recommendation adopted, 2024
WL 3823475 (N.D.N.Y. Aug. 15, 2024). 	“To be sure, prison officials looking for
contraband may subject inmates to reasonable strip searches and cavity searches.”
Crawford v. Cuomo, 796 F.3d at 258. “In determining whether an Eighth Amendment
violation has occurred, the principal inquiry is whether the contact is incidental to
legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 7 of 14

8
whether it is undertaken to arouse or gratify the officer or humiliate the inmate.” Id. at
257–58.
Defendants 	argue 	that 	the 	strip 	search 	was 	conducted 	with 	a 	legitimate
penological purpose and thus Plaintiff’s claim with respect to it must be dismissed.
Defs.’ Mem. of Law at pp. 4-5. 	Defendants allege that this legitimate penological
purpose was established from Moore’s conduct of running away from the C.O.s after
being 	“positively 	identified 	as 	a 	perpetrator 	who 	assaulted 	another 	incarcerated
individual.” 	Id. at pp. 4-5. 	The Complaint alleges that Plaintiff was, in fact,
misidentified as the perpetrator of the assault relied on by Defendants and that at the
time of the strip search Plaintiff was compliant and cuffed. 	Pl.’s Opp. at pp. 6-8.
Additionally, he states in his Complaint that the strip search was conducted while he
was falling in and out of consciousness. Compl. at p. 6. Plaintiff claims that Defendants
acted without a legitimate penological purpose and in a manner to humiliate him. Pl.’s
Opp. at p. 8.
Taken together, Plaintiff’s allegations counsel against dismissal of Plaintiff’s
claims. George v. City of New York, 2013 WL 5943206, at *7 (S.D.N.Y. Nov.6, 2013)
(“[S]trip searches performed with no legitimate penological purpose but merely to
intimidate, harass, or punish are impermissible.”). Plaintiff’s Complaint goes so far as
to concede that some search of his person may have been supported by a legitimate
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 8 of 14

9
penological interest, but that the manner in which the strip search in particular was
conducted “exceeded the scope of what was required to satisfy whatever institutional
concern justified the initiation of the procedure.” 	Compl. at p. 12. 	He highlights, for
example, his claim that he was compliant with staff direction and that he was handcuffed
and thus less of a threat at the time of the strip search. Pl.’s Opp. at pp. 6-8. Plaintiff
also appears to allege that multiple Defendants conducted the anal cavity search. Compl.
at p. 12. 	Under these circumstances, the question of whether Defendants’ particular
actions served a legitimate penological purpose or, as Plaintiff alleges, exceeded the
scope of what was necessary is a fact-bound one that cannot be decided given the
allegations identified above. Plaintiff also alleges that no weapon was ever discovered
on his person. 	Id. at p. 6. 	“Whether Plaintiff had contraband on him is material to
Defendants’ purported penological purpose for the manual cavity search.” 	Layne v.
Panzarella, 2022 WL 2343184, at *6 (S.D.N.Y. June 29, 2022).
It is Defendants’ burden to prove that there was a legitimate penological purpose
of the body cavity search. See generally Harris v. Miller, 818 F. 3d 49 (2d Cir. 2016).
On a more fully developed record, they may well be able to establish that there was, but
at this stage of the proceedings, where Plaintiff’s allegations must be taken as true, denial
of the Motion is the most appropriate course.
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 9 of 14

10
2. Physical Force
Defendants also briefly argue that Plaintiff’s claim that he was slammed face first
into the corner of wall should be dismissed as a de minimis use of force. Defs.’ Mem.
of Law at p. 6. This aspect of the Motion should be denied.
“The Eighth Amendment’s prohibition of ‘cruel and unusual punishment’
necessarily excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort ‘repugnant to a conscience of mankind.’”
Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (quoting Whitley v. Albers, 475 U.S. 312,
327 (1986)). 	As stated by the Second Circuit, “Hudson simply makes clear that
excessive force is defined as force not applied in a ‘good faith effort to maintain or
restore discipline.’” 	Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (quoting
Hudson v. McMillian, 503 U.S. at 7). At this early stage of the proceedings, Plaintiff’s
complaint that he was “slammed face first in to the corner of a wall,” Compl. at p. 6,
sufficiently alleges more than a de minimis action which warrants denial of this aspect
of the Motion. 	This is especially true given the allegation that he suffered serious
injuries as a result of the alleged assault. See Compl. at pp. 6 & 13.
For these reasons, the Court recommends that the Motion to Dismiss some of
Plaintiff’s Eighth Amendment claims be denied.
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 10 of 14

11
B. Plaintiff’s Fourteenth Amendment Due Process Claim Against Lt. Allen
The Due Process Clause of the Fourteenth Amendment provides that “[n]o state
shall . . . deprive any person of life, liberty, or property without due process of law.”
U.S. Const. Amend. XIV. 	For a Plaintiff to “successfully state a claim under Section
1983 for denial of due process arising out of a disciplinary hearing, a plaintiff must show
that he both (1) possessed an actual liberty interest, and (2) was deprived of that interest
without being afforded sufficient process.” Rasheen v. Adner, 356 F. Supp. 3d 222, 236-
237 (N.D.N.Y. 2019); see also Ortiz v. McBride, 380 F. 3d 649, 654 (2d Cir. 2004);
Tellier v. Fields, 280 F. 3d 69, 79-80 (2d Cir. 2000).
The due process protections that inmates facing disciplinary hearings are
afforded when they have a liberty interest include “advance written notice of the
charges, a fair and impartial hearing officer, a hearing that affords the inmate the
opportunity to call witnesses and present documentary evidence, and a written statement
of the evidence upon which the hearing officer relied in making his determination.”
Toliver v. Fischer, 2016 WL 3351974 at *8 (N.D.N.Y. 2016) (citing Sira v. Morton, 380
F.3d 57, 69 (2d Cir. 2004)). 	Moreover, “[t]he hearing officer’s findings must be
supported by ‘some’ ‘reliable evidence.’” Id. (quoting Sira v. Morton, 380 F. 3d at 69).
Defendants do not deny that Plaintiff has adequately alleged a protected liberty
interest. Defs.’ Mem. of Law at p. 7. Instead, they argue that Plaintiff’s Complaint did
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 11 of 14

12
not allege any inadequacy in the due process he received. 	Id. 	Defendants are correct
that to the extent Plaintiff’s Complaint is based on application of the fruit of the
poisonous tree doctrine he fails to state a claim because that doctrine is not applicable
to 42 U.S.C. § 1983 claims. 	See DiMascio v. City of Albany, 2000 WL 232053 at *1
(2d Cir. 2000). However, the pleadings thus far do allege sufficient facts to permit this
claim to proceed to discovery.
The Complaint specifically alleges that he was found guilty of certain charges
contained in the misbehavior reports despite “[d]ocumentary evidence [and] witness
testimony” that he was not guilty of some the charges. Compl. at p. 8. He reiterates that
claim in opposition to the Motion. Pl.’s Opp. at pp. 9-11. These allegations can be read
to 	assert 	that 	the 	hearing 	determination 	was 	not 	supported 	by 	some 	evidence.
“Plaintiff’s claims, liberally construed, while slim, are at least sufficient to survive a
motion to dismiss.” Santos v. Keenan, 2020 WL 2859202, at *6 n.9 (W.D.N.Y. Feb. 6,
2020), report and recommendation adopted, 2020 WL 1025189 (W.D.N.Y. Mar. 3,
2020).3 The Court, therefore, recommends that the Motion to Dismiss the due process
claim be denied.
3 In reaching this conclusion, the Court notes that the “some evidence” standard is a low bar and on a more fully
developed record Defendants may well be able to establish that Plaintiff’s allegations challenge only the weight
of the evidence and thus do not present a due process claim. See Tate v. Robinson, 1998 WL 214429, at *2
(N.D.N.Y. Apr. 23, 1998).
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 12 of 14

13
IV. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that the Motion to Dismiss (Dkt. No. 35) be DENIED as
set forth above; and it is further
RECOMMENED, that the Motion for a Default Judgment (Dkt. No. 23) be
DENIED; and it is
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)4 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. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72
4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 13 of 14

14
& 6(a).
Date: 	January 9, 2026
Albany, New York
Case 9:24-cv-01105-LEK-DJS Document 52 Filed 01/09/26 Page 14 of 14