An inmate who says he was forcefully slapped during a strip search can proceed with his excessive force claim, a federal judge has ruled. “Without further information about the need for the application of force, the relationship between the need and the force used, or the extent (or lack) of plaintiff’s injuries, the court cannot say at this stage that the slap was de minimus as a matter of law,” Eastern District Judge Allyne Ross (See Profile) said in Benjamin v. Flores, 11-cv-4216. In refusing to wholly grant a dismissal motion, the judge said that while the excessive force claim might be “weak” or “thin…it plausibly states a claim” that the officer “acted unlawfully.”

The case stems from the time Jason Benjamin’s fiancée visited him at the Anna M. Kross Center on Riker’s Island on April 27, 2011. As the two were “hugging and kissing” in the visiting room, a corrections officer grabbed Benjamin and he was searched on suspicion of smuggling contraband, but nothing illegal was found. Benjamin said he was “visciously [sic] slapped” during the search because he got up from his squat though the officer did not tell him to stand. Benjamin’s punishment included a 45-day bar on visits from his fiancée.

In his August 2011 complaint, Benjamin did not allege any injuries resulting from the slap. Yet he sought restoration of visiting privileges and money for the purported mental and emotional stress of the incident. In her ruling, Ross let out of the suit two other defendant corrections officers she determined were not personally involved in the incident. Ross also dismissed without prejudice another claim challenging Benjamin’s restriction of visiting privileges.

Attorneys for the corrections officers maintained slaps are a minimal use of force. But reviewing the case law they cited, Ross pointed out those cases were summary judgment rulings where evidence undercut the plaintiff’s credibility or the injuries were deemed minimal. Benjamin, 22, represented himself and is incarcerated at Upstate Correctional Facility in Malone for a conviction of first-degree attempted assault and his earliest possible release date is scheduled for March 2013.