Lee-Edwards et al
MEMORANDUM AND ORDER, The Court grants Newland and Zander's 6 Motion for Leave to Proceed in forma pauperis and 7 Motion for Leave to Proceed in forma pauperis. For the reasons discussed below, the Clerk of Court is directed to dismiss plt ffs Donald R. Lee-Edwards, Shon Bruce, Bryant McCaskill and Marcellin Hyman from the action without prejudice. The complaint itself is also dismissed and the remaining pltffs, Newland and Zander, are granted 30 days leave from the entry of this order on the docket to file an amended complaint in accordance with the terms and conditions of the grant of leave. With caption amended, the complaint is dismissed against the NYC Dept. of Correction with prejudice and against Deputy Espada, C.O. Simpson , Shield #9495, Capt. Figueroa, Shield #1473, C.O. Mitchell, Shield #9627 and C.O. Searchwell, Shield #15695 without prejudice. Newland and Zander are instructed that their amended complaint must comply with Rule 8(a) of the FRCP and include all rele vant known facts and dates. Should they elect to file an amended complaint, they must set forth factual allegations to support their claim against each named deft and describe how each deft was personally involved in the alleged deprivation of their federal rights. New Land and Zander must also allege what physical injuries they suffered as a result of the alleged involvement of each named deft they claim deprived them of their federal rights. The amended complaint must bear the amended cation, be identified as an "Amended Complaint," and also bear the same docket number as this order. No summonses shall issue at this time and all further proceedings shall be stayed until further leave of the Court. The Court certifies pursuant to 28 USC sec. 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. (Ordered by Judge Eric N. Vitaliano on 6/09/2016) c/m (Galeano, Sonia)
IN CLERK'S OFFicr.:
US DISTRICT COURT E.D.N.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------DONALD R. LEE-EDWARDS, HOWARD
NEWLAND, SHON BRUCE, OMAR ZANDER,
BRYANT McCASKILL, MARCELLIN HYMAN,
JUN 2 1 2015
BAOOKL YN OFFICE
MEMORANDUM & ORDER
l 6-cv-0725 (ENV) (MDG)
-againstNEW YORK CITY DEPARTMENT OF
CORRECTION; DEPUTY ESPADA; C.O.
SIMPSON, Shield #9495; CAPTAIN FIGUEROA,
Shield #1473; C.O. MITCHELL, Shield #9627; C.0.
SEARCHWELL, Shield #15695,
On February 9, 2016, plaintiffs, each on their own behalf proceeding prose, filed this
complaint pursuant to 42 U.S.C. § 1983. The Court grants Newland and Zander's applications to
proceed informa pauperis ("IFP application"), pursuant to 28 U.S.C. § l 915(a). For the reasons
discussed below, the Clerk of Court is directed to dismiss plaintiffs Donald R. Lee-Edwards,
Shon Bruce, Bryant McCaskill and Marcellin Hyman from the action without prejudice. The
complaint itself is also dismissed and the remaining plaintiffs, Newland and Zander, are granted
30 days' leave from the entry of this order on the docket to file an amended complaint in
accordance with the terms and conditions of the grant of leave.
Newland and Zander allege that, on November 24, 2015, another inmate, Jerry Wilson,
who is not named as a party, discovered a mouse "stewed" in his lunch meal of vegetarian chili
and rice while they were all eating the same food together in the mess hall of Otis Bantum
Correctional Center at Rikers Island ("OBCC"), a New York jail facility. Compl. at 3, 18, 23.
Zander alleges that he now has "anxiety, panic attacks when it come time to go to feeding here in
jail," and seeks $50,000 for pain and suffering and "mental anguish." Id. at 18, 20. Newland
also seeks $50,000 in damages and alleges that he has been diagnosed with arachnophobia, has a
"phobia of mice," and he keeps "reliving the sight of that vermin on his tray." Id at 23, 25.
At the time of filing, all six named plaintiffs were incarcerated at the OBCC. The Court
did not receive the requisite filing fee or Prisoner Authorization form as required under the
Prison Litigation Reform Act ("PLRA") to commence this action from Lee-Edwards, Bruce,
McCaskill or Hyman. By letters, dated February 11, 2016, the Clerk of Court provided LeeEdwards, Bruce, McCaskill and Hyman with notice of the deficiency and enclosing the proper
forms required in order to proceed. Each was instructed to either pay the fee or return the
completed Prisoner Authorization form within 14 days from the date of the letter. See Dkt.
Entries 8, 9, 10, 11. On February 29, 2016, the letter sent to McCaskill was returned by the
United States Postal Service as undeliverable. See Dkt. Entry 13. To date, McCaskill, LeeEdwards, Bruce and Hyman have neither paid the filing fee nor filed a completed Prisoner
Authorization form to proceed with this action. As a result, regardless of what may otherwise be
alleged in any amended complaint, the claims against these defendants as to these plaintiffs is
dismissed without prejudice.
Standard of Review
Pro se pleadings are held to less stringent standards than those drafted by attorneys, and
the Court is required to read a pro se complaint liberally and interpret it as raising the strongest
arguments it suggests. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251
(1976) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972);
Sealed Plaintiffv. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008). Moreover, at the
pleadings stage of a litigation, the district court must assume the truth of "all well-pleaded,
nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621
F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937,
1950, 173 L. Ed. 2d 868 (2009)). A complaint must plead sufficient facts to "state a claim to
relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974, 167 L. Ed. 2d 929 (2007).
However, under 28 U .S.C. § l 9 l 5A, 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 officer or employee of a
governmental entity." 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a
prisoner's 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." Id; Liner v. Goord, 196 F.3d 132, 134 & n.l (2d Cir. 1999) (noting that,
under the PLRA, sua sponte dismissal of frivolous prisoner complaints is not only permitted but
mandatory); see also Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999). See also 28 U.S.C. §
In order 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, "the
conduct complained of must have deprived a person of rights, privileges or immunities secured
by the Constitution or laws of the United States." Id. Section 1983 "does not create a federal
right or benefit; it simply provides a mechanism for enforcing a right or benefit established
elsewhere." Morris-Hayes v. Bd of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159
(2d Cir. 2005) (citing Okla. City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 85 L. Ed. 2d 791
Prison Litigation Reform Act
At the outset, the Court notes that the PLRA establishes that "[n]o federal civil action
may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental
or emotional injury suffered while in custody without a prior showing of physical injury." 42
U.S.C. § l 997e(e). A "plaintiff cannot recover damages for mental or emotional injury for a
constitutional violation in the absence of a showing of actual physical injury." Thompson v.
Carter, 284 F.3d 411, 417 (2d Cir. 2002). On the other hand,§ 1997e(e) only limits the recovery
for emotional and mental injury in the absence of physical injuries; it does not bar a plaintiff
from bringing a lawsuit or from obtaining nominal or punitive damages, or injunctive and
declaratory relief. Id. at 418. Nonetheless, a district court may dismiss a complaint that seeks
compensatory damages "solely for an emotional injury without any claim of physical injury." Id.
at 419. Here, neither Newland nor Zander allege that they suffered any physical injury as a
direct result of eating the alleged vermin-tainted meal on November 24, 2015. With respect to
any such claim, the complaint is silent.
Furthermore, in a civil rights action, a plaintiff must demonstrate a defendant's 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); Sage-El v. Tully, No. 15-CV-5606 (JG), 2015 WL 6455242, at *2 (E.D.N.Y.
Oct. 26, 2015); Leibovitz v. City ofNew York, No. 15-CV-1722 (KAM), 2015 WL 3971528, at
*4 (E.D.N.Y. June 30, 2015). A plaintiff must "allege a tangible connection between the acts of
a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
Here, Newland and Zander name five individual defendants, Captain Figueroa, Deputy
Captain Espada, C.O. Simpson, C.O. Searchwell and C.O. Mitchell, who appear to have been
guarding the mess hall at the time of the charged incident. However, the only alleged
involvement of any of them is that subsequent to Wilson claiming to have discovered the mouse
in his food, he showed his lunch tray to Captain Figueroa and Deputy Captain Espada. Compl. at
23. Newland and Zander do not sufficiently allege that any of these individual defendants had
any direct involvement with, knowledge of, or responsibility for acts or omissions causing a
deprivation of their civil rights.
Claims Against the City of New York Department of Correction
Newland and Zander's claims also cannot proceed against the New York City
Department of Correction. The New York City Charter provides that "[a]ll actions and
proceedings for the recovery of penalties for the violation of any law shall be brought in the
name of the City of New York and not in that of any agency, except where otherwise provided
by law." N.Y.C. Charter§ 396 (2009), available at
http://www.nyc.gov/html/charter/downloads/pdf/citycharter2009.pdf. This provision has been
construed to mean, generally, that New York City departments and agencies, as distinct from the
City itself, cannot be sued. Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir.
2008); Adams v. Galletta, 966 F. Supp. 210, 212 (E.D.N.Y. 1996) (DOC not a suable entity);
Campbell v. New York City, No. 12-CV-2179 (CBA), 2012 WL 3027925, at *2 (E.D.N.Y. July
23, 2012) (dismissing all claims against the NYPD and DOC as non-suable entities). Moreover,
even if this claim was to be construed as being brought directly against the City of New York,
nothing remotely suggests that a § 1983 municipal liability claim might be stated. See Monell v.
Department o/Social Services, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
Accordingly, the Clerk of Court is directed to dismiss plaintiffs Donald R. Lee-Edwards,
Shon Bruce, Bryant McCaskill and Marcellin Hyman from this action without prejudice and to
amend the caption accordingly. With caption amended, the complaint is dismissed against the
New York City Department of Correction with prejudice and against Deputy Espada, C.O.
Simpson, Shield #9495, Captain Figueroa, Shield #1473, C.O. Mitchell, Shield #9627 and C.O.
Searchwell, Shield #15695 without prejudice. 28 U.S.C. §§ 1915A; 1915(e)(2)(B).
In light of this Court's duty to liberally construe prose complaints, Newland and Zander
are given 30 days' leave from the date this order is entered on the docket to file an amended
complaint against the individual defendants. See Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.
2000). They are instructed that their amended complaint must comply with Rule 8(a) of the
Federal Rules of Civil Procedure and include all relevant known facts and dates. Should they
elect to file an amended complaint, they must set forth factual allegations to support their claim
against each named defendant and describe how each defendant was personally involved in the
alleged deprivation of their federal rights. Newland and Zander must also allege what physical
injuries they suffered as a result of the alleged involvement of each named defendant they claim
deprived them of their federal rights.
The amended complaint must bear the amended caption, be identified as an "Amended
Complaint," and also bear the same docket number as this order. No summonses shall issue at
this time and all further proceedings shall be stayed until further leave of the Court.
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. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920, 8 L. Ed. 2d
Dated: Brooklyn, New York
June 9, 2016
/s/ USDJ ERIC N. VITALIANO
ERIC N. VITALIANO
United States District Judge
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