Parsons v. Mawiah

Filing 8

MEMORANDUM & ORDER: The Court grants Plaintiff's 5 application to proceed in forma pauperis ("IFP") for the purpose of this Memorandum and Order. The Court dismisses the Complaint for failure to state a claim. The Cou rt grants Plaintiff 30 days from the date of this Memorandum and Order to file an amended complaint. If Plaintiff fails to file an amended complaint within the time allowed, the Court will enter judgment dismissing this action for the reasons set forth above. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 5/23/2017. (Copy of this Order and the attached copies of all unpublished decisions cited herein sent to pro se Plaintiff.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------KEVIN PARSONS,
Plaintiff,

MEMORANDUM & ORDER
17-CV-1765 (MKB)

v.
THE CITY OF NEW YORK, DEPUTY WARDEN
GALLAGHER and CAPTAIN MAWIAH,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Kevin Parsons, proceeding pro se and currently incarcerated at the Ogdensburg
Correctional Facility, filed this action pursuant to 42 U.S.C. § 1983 against Defendants the City
of New York, Deputy Warden Gallagher and Captain Mawiah1 related to an incident at an
unidentified New York City detention facility. (Compl., Docket Entry No. 1.) The Court grants
Plaintiff’s application to proceed in forma pauperis (“IFP”) for the purpose of this Memorandum
and Order. For the reasons set forth below, the Court dismisses the Complaint but grants
Plaintiff thirty (30) days to file an amended complaint.
I.

Background
For purposes of this Memorandum and Order, the Court assumes the truth of the

allegations in the Complaint. On October 14, 2014 at approximately 12:30 PM, “housing unit
19-A of the detention facility was placed on lockdown because of a T.S.O. ‘Total Search

1

Plaintiff does not provide the first names for any of the individuals he names in the
Complaint. (See Compl.)

Outfit.’” (Compl. 6.)2 Officers Mitchell and Harper informed Plaintiff that the lockdown was
related to gang violence.3 (Id.) During the lockdown, Plaintiff’s cell was contaminated with
“MK-9 chemical agents” and has not yet been detoxified or decontaminated. (Id. at 6.) Because
of the lockdown, Plaintiff and other inmates were not fed until 9:00 PM. (Id. at 7.) As a result
of the lockdown, Plaintiff had no access to his pain medication, showers, recreation, visitors and
use of the telephone for over 132 hours. (Id. at 6–8.) Plaintiff asserts that these actions
constituted cruel and unusual punishment in violation of the Eighth Amendment of the United
States Constitution. (Id. at 8–9.) He seeks unspecified money damages.4 (Id.)
II. Discussion
a.

Standard of review

A complaint must plead “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). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”

2

Because the complaint and the attachment are not consecutively paginated, the Court
refers to the page numbers assigned by the electronic document filing system (ECF).
3

Plaintiff states that he is not a gang member. (Id.)

4

Plaintiff filed a prior civil action in the Eastern District of New York related to an
incident that occurred on August 11, 2014 in Unit 19-A, at the George R. Vierno Center at
Rikers Island. That case remains pending before the Court. See Parsons v. Gallagher, No. 17CV-365.
2

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97,
104–105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”). Nevertheless,
the court must screen “a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity” and “dismiss the complaint
or any portion of the complaint,” if it is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. 1915A; see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
Similarly, the Court is required to dismiss sua sponte an in forma pauperis action if the Court
determines it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); see also Abbas, 480 F.3d at 639.
b.

Plaintiff fails to state a claim under section 1983

Plaintiff asserts that Defendants violated his federal constitutional rights under the Eighth
Amendment, which is a cognizable claim under section 1983.
Under section 1983, individuals may bring a private cause of action against persons
“acting under color of state law” to recover money damages for deprivations of their federal or
constitutional rights. Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 55 (2d Cir. 2014) (quoting
42 U.S.C. § 1983). To establish a viable section 1983 claim, a plaintiff must show “the violation
of a right secured by the Constitution and laws of the United States” and that “the alleged
deprivation was committed by a person acting under color of state law.” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (citations and internal quotation marks
omitted).

3

A municipality, like the City of New York, can be liable under section 1983 only if a
Plaintiff can demonstrate “(1) an official [municipal] policy or custom that (2) cause[d] the
plaintiff to be subjected to (3) a denial of a constitutional right.” Torraco v. Port Auth. of N.Y. &
N.J., 615 F.3d 129, 140 (2d Cir. 2010) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d
Cir. 2007)). In general, proof of a single incident of unconstitutional activity is not sufficient to
impose liability on a municipality unless a plaintiff can establish that the incident occurred
pursuant to one of the following: (1) a formal policy officially endorsed by the municipality; (2)
actions or decisions made by municipal officials with decision-making authority; (3) a practice
so persistent and widespread that it constitutes a custom of which policymakers must have been
aware; or (4) a failure by policymakers to properly train or supervise their subordinates, such that
the policymakers exercised “deliberate indifference” to the rights of the plaintiff and others
encountering those subordinates. See Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 13–
14 (2d Cir. 2015) (formal policy officially endorsed by the municipality); Matusick, 757 F.3d at
62 (widespread and persistent practice); Carter v. Inc. Vill. of Ocean Beach, 759 F.3d 159, 164
(2d Cir. 2014) (failure to train amounting to deliberate indifference); Jones v. Town of E. Haven,
691 F.3d 72, 81 (2d Cir. 2012) (policymaking official’s “express” or “tacit” ratification of lowlevel employee’s actions). In addition, a plaintiff bringing a section 1983 claim against
individuals must show that each of the named individuals is personally liable for the alleged
harm. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). “Because vicarious liability is
inapplicable to . . . [section] 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676.

4

Here, Plaintiff does not set forth any allegations showing that Deputy Warden Gallagher
and Captain Mawiah are personally responsible for the alleged Eighth Amendment violations,
nor does Plaintiff allege any unconstitutional policy or custom attributable to the City of New
York. (See Compl.) Accordingly, Plaintiff’s claims are dismissed for failure to state a claim
upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C.
§ 1915(e)(2)(B)(ii).
c.

Leave to amend

In light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file an amended
complaint within thirty (30) days of this Memorandum and Order, in order to identify the
unconstitutional policy or custom that caused the alleged violation of his constitutional rights and
to set forth allegations detailing how Deputy Warden Gallagher, Captain Mawiah or any other
individuals are personally responsible for the alleged deprivation of his constitutional rights.
Plaintiff must provide the date and location for all relevant events and a brief description of what
each defendant did or failed to do in violation of Plaintiff’s civil rights. Plaintiff is advised that
the amended complaint will completely replace the original complaint, must be captioned,
“Amended Complaint,” and must bear the same docket number as this Memorandum and Order.
III. Conclusion
Accordingly, the Court dismisses the Complaint for failure to state a claim. See 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). The Court grants Plaintiff thirty (30) days from the
date of this Memorandum and Order to file an amended complaint. If Plaintiff fails to file an
amended complaint within the time allowed, the Court will enter judgment dismissing this action
for the reasons set forth above.

5

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith, and therefore in forma pauperis status
is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45
(1962).
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: May 23, 2017
Brooklyn, New York

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