Foreman v. Off. Surez et al

Filing 7

MEMORANDUM AND ORDER, granting Pltff's 2 Motion for Leave to Proceed in forma pauperis. Pltff's complaints are consolidated solely for the purpose of this order. For the reasons discussed herein, pltff's complaints are dismissed for failure to state a claim upon which relief may be granted. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of Court is directed to enter judgment in accordance with this Memorandum and Order to close both cases. (Ordered by Judge Eric N. Vitaliano on 2/18/2012) c/m (Galeano, Sonia)

FILED
IN CLERK'S OF-f ICE'

1JS DtSlRJCT COURT f" i:

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FEB 2q012
EASTERN DISTRICT OF NEW YORK

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-----------------------------------------------------------I!J'IOOKLYN 0 FFICE
KENY AITTA BENJAMIN FOREMAN,

MEMORANDUM AND ORDER
Plaintiff,
11 CV 4584 (ENV)

-againstOFFICER SAN MARTIN, Shield 17157;
GMDC SUPT. WARDEN J. DAVIS;
DOCS NYC COMMISSIONER;
NYS/NYC GANG INTELLIGENCE
UNIT NYC DOCS,
Defendants.

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KENYAITTA BENJAMIN FOREMAN,
Plaintiff,

11 CV 4585 (ENV)

-againstOFF. SUREZ, SHIELD # 10977;
OFF. CROWE; OFF. PARKER;
OFF ROBINSON; OFF. BANKS;
GMDC SUPT. WARDEN J. DAVIS;
OFF. CAPT. CARMICHAEL, MDC C-73;
MENTAL HEALTH DEPT.; NYC DOCS
COMMISSIONER,
Defendants.

--------------------------------------------------------------X
VITALIANO, United States District Judge.
Plaintiff brings these two 42 U.S.C. § 1983 prose actions related to conduct that allegedly
occurred while he was incarcerated at Rikers Island Correctional Facility. Plaintiff's requests to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915 are granted. Plaintiffs complaints are

consolidated solely for the purpose of this order. For the reasons discussed below, plaintiff's
complaints are dismissed for failure to state a claim upon which relief may be granted.
Backe;round

In 11 CV 4584, plaintiff alleges that correction officers at Rikers Island confiscated his
Nike sneakers, stating that "they were gang related," and issued him "Bob Barker institutional
sneakers."

(~

id., Complaint, at Statement of Claim~ IV.) In 11 CV 4585, although not

entirely clear, plaintiff generally alleges that correction officers stole two pairs of pants out of a
package he received in the mail. (See 14., Complaint, at Attached Rider pgs 1-6.) Plaintiff seeks
monetary damages for these alleged harms.
Standard of Review

Under 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or employee of a governmental entity." 28 U.S.C.
§ 1915A. Upon review, a district court shall dismiss a prisoner complaint sua sponte if the

complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted; or
seeks monetary relief from a defendant who is immune from such relief."

14.; Abbas v. Dixon,

480 F.3d 636, 639 (2d Cir. 2007); ~ also Liner v. Goard, 196 F.3d 132, 134 & n. 1 (2d Cir. 1999)
(noting that under Prison Litigation Reform Act, sua sponte dismissal of frivolous prisoner
complaints is not only permitted but mandatory).
Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of"all
well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d Ill, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal. 129 S.Ct.

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1937, 1949-50 (2009)). A complaint must plead sufficient facts to "state a claim to relief that is
plausible on its face." Bell Ad. Corp. v. Twombly. 550 U.S. 544, 570 (2007).
It is axiomatic that prose complaints are held to less stringent standards than pleadings

drafted by attorneys, and the Court is required to read such a complaint liberally and interpret it as
raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007);
Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiffv. Sealed Defendant #1, 537 F.3d 185,
191-93 (2d Cir. 2008).
Discussion
To maintain a§ 1983 action, a plaintiff must allege two essential elements. First, "the
conduct complained of must have been committed by a person acting under color of state law."
Pitchell v. Callan, 13 F.3d 545,547 (2d Cir. 1994) (citation omitted). Second,

'~he

conduct

complained of must have deprived a person of rights, privileges or immunities secured by the
Constitution or laws of the United States." Id. And, in a civil rights action for monetary
damages, a plaintiff must demonstrate the defendants' direct or personal involvement in the
actions which are alleged to have caused the constitutional deprivation, Farrell v. Burke, 449 F.3d
470,484 (2d Cir. 2006); Wright v. Smith, 21 F. 3d 496, 501 (2d Cir. 1991); Kneitel v. Hyne~ No.
11 CV 2883,2011 WL 2747668, at '2 (E.D.N.Y. July 13, 2011), and must "allege a tangible
connection between the acts of the defendant and the injuries suffered." Bass v. Jackson, 790
F.2d 260,263 (2d Cir. 1986).
Plaintiffs claims against defendants Warden Davis, Captain Carmichael, and the
Commissioner of the New York City Department of Correction must fail. Liability under § 1983

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cannot be generally imposed on a supervisor solely based on his position because there is no
respondeat superior or vicarious liability under § 1983. See,~., Igbal, 129 S.Ct. at 1948
("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's own individual actions, has violated the
Constitution."); Hernandez v. Keane 341 F.3d 137, 144 (2d Cir. 2003); Jenkins v. Morris, No. 11
CV 4178, 2011 WL 3877057, at *2 (E.D.N. Y. Sept. 1, 2011 ). Here, plaintiff fails to allege any
facts to support a claim that Warden Davis, Captain Carmichael, or the Commissioner of the New
York City Department of Correction had any direct involvement with, knowledge of, or
responsibility for the alleged deprivation of plaintiff's civil rights to make them liable under
§ 1983. Accordingly, plaintiff's claims againstthem are dismissed.

Moreover, to the extent that plaintiff seeks to name the GMDC facility at Rikers Island as
a defendant, his claim fails. Rikers Island, which is part of the New York City Department of
Correction, an agency of the City of New York, cannot be sued independently. Jackson v. Rikers
Island Facility, No. 11 Civ. 285,2011 WL 3370205, at *2 (S.D.N.Y. Aug. 2, 2011); Thomas v.
Bailey, No. 10 CV 0051, 2010 WL 662416, at *2 (E.D.N.Y. Feb. 22, 2010).
Finally, plaintiffs allegations that he was not allowed to wear the sneakers of his choice
and that two pairs of his pants were removed from his possession without his permission while he
was incarcerated at Rikers fail to suggest any legal theory on which claims against the remaining
defendants could be based. 1 First, according to New York City Department of Correction policy,
of which the Court may and does take judicial notice on this sua sponte motion, inmates are not
1

Obviously, with respect to the defendants against whom claims were dismissed on other
grounds, assuming specific allegations as made against the remaining defendants, the same
deficiencies in pleading would be fatal to those claims as well.

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permitted to keep personal footwear and should receive departmental footwear when they are first
processed, along with a property receipt for their personal footwear. See Wheat v. New York City
Dept. ofCorrectiQ.n, No. 10 Civ. 5459, 2010 WL 5129065, at *I (S.D.N.Y. Dec. 15, 2010).
Second, plaintiff has failed to allege any specific facts to support his claim that his pants were
stolen; rather, he has made broad allegations against a host of correction officers. Even assuming
that plaintiffs pants were taken from his possession without permission, no deprivation of a
constitutional right would have occurred. Accordingly, this claim fails to rise to the level of a
constitutional violation. In fact, until he is released from custody and his property is not returned
to him, he appears to have no cognizable claim whatsoever.
Conclusion
In accordance with the forgoing, plaintiffs complaints are dismissed pursuant to 28 U.S. C.

§ I915A(b) for failure to state a claim. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order would not be taken in good faith and therefore in forma pauperis
status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438,444-45
(1962).
The Clerk of Court is directed to enter judgment in accordance with this Memorandum
and Order and to close both cases.
SO ORDERED.

EluC N:VITAtiANO
United States District Judge
Dated:

Brooklyn, New York
February 18, 2012

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