13-593-cv Glassman v. The City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

### SUMMARY ORDER Rulings by summary order do not have precedential effect. Ci tation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Pr ocedure 32.1 and this court’s Lo cal Rule 32.1.1. When citing a summary order in a document filed with this court, a pa rty must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citinga summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 4 thday of March, two thousand fourteen. 3 4 PRESENT: 5 6 D EBRA ANN L IVINGSTON , 7 B ARRINGTON D. P ARKER , 8 S USAN L. C ARNEY , 9 10 Circuit Judges

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_______________________________________________ 12 13 D ONALD GLASSMAN , 14 15 Plaintiff-Appellant , 16 -v.- No. 13-593-cv 17 18 T HE C ITY OF NEW Y ORK , ET AL ., 19 Defendants-Appellees

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I GOR K OTLYAR , Kotlyar Law, P.C., New York, NY, for 22 Plaintiff-Appellant

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L ARRY A. S ONNENSHEIN (Susan P. Greenberg, on the brief ), 24 for Michael A Cardozo, Corporation Counsel of the City of 25 New York, for Defendants-Appellees

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1UPON DUE CONSIDERATION , it is hereby ORDERED, ADJUDGED , and DECREED 1 that the order of the District Court is AFFIRMED. 2 Plaintiff-Appellant Donald Glassman comme nced this suit under 42 U.S.C. § 1983 alleging 3 violations of his Fourth, Fifth, and Fourteenth Amendment rights under the United States 4 Constitution, as well as additional state laws. OnJanuary 7, 2013, the United States District Court 5 for the Southern District of New York (Stein, J. ) entered judgment granting the City of New York’s 6 motion for summary judgment on plaintiff’s federal constitutional claims; the district court also 7 declined to exercise supplemental jurisdiction over plaintiff’s state law claims. 8 On appeal, Glassman challenges only the distri ct court’s grant of summary judgment on his 9 municipal liability claim against New York City asserting that City personnel violated his 10 constitutional rights by strip searching him on tw o occasions. The district court dismissed 11 Glassman’s belatedly asserted strip-search claim ag ainst the City explaining th at “[e]ven if [he] was 12 impermissibly strip searched, he fails to elaborate how his strip search was the product of any 13 municipal policy, custom, or usage.” We assume the parties’ familiarity with the underlying facts 14 and procedural history of the case, and with the issues on appeal. 15
* * * 16 Municipalities are not liableunder 42 U.S.C. § 1983 “unless action pursuant to official 17 municipal policy of some nature caused a constitutional tort.” Monell v. Dep’t of Soc. Serv. , 436 18 U.S. 658, 691 (1978). A plaintiff musttherefore plead and prove the existence of “an official policy 19 or custom” and that this policy or custom cause d the deprivation of his constitutional rights. Batista 20 v. Rodriguez , 702 F.2d 393, 397 (2d Cir. 1983). We agree with the district court that Glassman has 21 not adduced sufficient evidence of a municipal po licy or custom of unconstitutional arrestee strip 22 searches to survive a motion for summary judgment. 23 2On appeal Glassman argues that there are materialfacts in dispute as to whether the City had 1 a municipal policy or custom to unl awfully strip search arrestees. Glassman points to only two facts 2 in support of this argument: (1) that he was strip s earched following arrest twice; and (2) that prior 3 to opting out, he was a member of the certified class in McBean v. City of New York , 228 F.R.D. 487 4 (S.D.N.Y. 2005). * Two incidents of a strip search, however , are not sufficient to raise an issue of 5 material fact regarding a policy orcustom in the City of New Yor k. The certification of the class 6 in McBean , moreover, is not evidence of a custom or policy in this case. As the district court 7 correctly held, these two facts are not sufficient for a reasonable juror to find that New York City 8 had a custom or policy to unconstitutionally strip search arrestees. 9 In any event, even if the plaintiff had addu ced evidence from which a juror could conclude 10 that his strip searches were the result of a municipal custom or policy, summary judgment is still 11 appropriate here on the alternative ground that such a policy was not a constitutional violation. 12 Glassman’s only argument that his strip searches were a violation of his constitutional rights is that 13 the city “lacked the individualized suspicion” required under the Fourth Amendment. This argument 14 fails under the Supreme Court’s decision in Florence v. Board of Chosen Freeholders of County of 15 Burlington , 132 S.Ct. 1510 (2012). In Florence , the Supreme Court upheld as constitutional a 16 suspicionless strip search of a detainee suspectedof committing a minor offense when the search 17 was conducted as part of the prison intake pro cess prior to introduction into the general jail 18 population. Id. at 1523. The Supreme Court reasoned that correctional officials have broad license 19

* In McBean , the district court certified a settlement class of plaintiffs who were subject to strip search by New York City’s Department of Corrections upon admission to a correctional facility between July 15, 1999 and July 22, 2002. The McBeanclass was certified before the Supreme Court’s decision in Florence v. Board of Chosen Freeholders of County of Burlington , 132 S.Ct. 1510 (2012). 3to devise reasonable search policies to inspect de tainees for possible injuries and gang affiliations, 1 prevent contraband from entering the jail, and ensure the safety of officers and prisoners. Id. at 2 1517-21. It concluded that, “in the absence of substantial evidence in the record to indicate that . 3 . . officials have exaggerated their response to these considerations courts should ordinarily defer 4 to their expert judgment in such matters.” Id. at 1517 (internal quotation marks omitted). Even 5 assuming the City has a policy regarding suspicionl ess strip searches for arrestees, Glassman has 6 proffered no admissible evidence (indeed, has failed ev en to allege facts) demonstrating that this 7 policy was “unnecessary or [an] unjustified res ponse to [the] problems of jail security.” Id. at 1513- 8 14. With no constitutional violation there can be no Monell claim and summary judgment was 9 appropriate. 10 We have reviewed Glassman’s remaining arguments and find them to be without merit. For 11 the foregoing reasons, the judgment of the District Court is AFFIRMED. 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14

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