Merchant v. Nassau County et al
Filing
6
ORDER granting 2 Motion for Leave to Proceed in forma pauperis. For the reasons set forth above, the Plaintiff's application to proceed in forma pauperis is granted, the Complaint is sua sponte dismissed as to Nassau County, Sheriff Sposato, the County Attorney, and NCCC pursuant to 28 U.S.C. § 1915A(b). Plaintiff is granted leave to file an Amended Complaint as set forth in this Order within thirty (30) days from the date that notice of entry of this Order is served upon him. If Pl aintiff fails to file an Amended Complaint within this time period, judgment shall enter. 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 the purpose of any appeal. So Ordered by Judge Joanna Seybert on 7/20/11. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALEX MERCHANT,
Plaintiff,
ORDER
11-CV-3130(JS)(AKT)
-againstNASSAU COUNTY, NASSAU COUNTY
CORRECTIONS CENTER-NCCC,
SHERIFF MICHAEL SPOSATO,
COUNTY ATTORNEY/NASSAU COUNTY,
Defendants.
----------------------------------X
APPEARANCES:
FOR Plaintiff:
Alex Merchant, Pro Se
# 11003996
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:
No Appearance.
SEYBERT, District Judge:
On June 29, 2011, incarcerated pro se plaintiff Alex
Merchant (“Plaintiff”) filed a Complaint in this Court pursuant to
42 U.S.C. § 1983 against Nassau County, Nassau County Corrections
Center (“NCCC”), Sheriff Michael Sposato, and the County Attorney
for Nassau County (collectively, “Defendants”).
Complaint
is
an
application
to
proceed
in
Accompanying the
forma
pauperis.
Plaintiff’s request for permission to proceed in forma pauperis is
GRANTED, but, for the reasons that follow, the Complaint is sua
suponte dismissed.
Plaintiff is granted thirty (30) days to file
an Amended Complaint as set forth below.
BACKGROUND
According to the brief, handwritten Complaint submitted
on the Court’s civil rights complaint form, Plaintiff was placed on
the
“adolescent
tier”
Correctional Center.
upon
arriving
at
the
Nassau
County
Plaintiff alleges that he is 19 years old,
and, as such, he belonged on the adult tier.
(Compl. at ¶ IV).
Plaintiff claims that he told “the COs” that he was 19, but “they
just laughed” at Plaintiff. (Id.). Eleven days later, while still
on the adolescent tier, Plaintiff describes that he was “jumped” by
other
inmates
officers.
and
(Id.).
then
“[m]ased”
by
unidentified
corrections
As a result of the alleged assault, Plaintiff
claims to have suffered injuries to his shoulder and back. (Id.).
Plaintiff alleges that he was then moved to an “adolescent lock-in
tier” notwithstanding Plaintiff’s request to be moved to an adult
tier.
(Id.).
Plaintiff then submitted a grievance that resulted
in his being moved to an adult tier.
despite
putting
in
“sick
calls”
(Id.).
he
has
Plaintiff claims that
received
no
medical
treatment for his injuries. (Compl. at ¶ IV.A.). Plaintiff claims
that his shoulder is “out of place” and his back is having “a lot
of problems.”
(Id.).
As a result of the foregoing, Plaintiff seeks unspecified
“money compensation” for his claimed injuries and for “them putting
me on a [sic] adolescents tier.”
(Compl. at ¶ V).
DISCUSSION
I.
In Forma Pauperis
Having reviewed Plaintiff’s declaration in support of his
2
application to proceed in forma pauperis, the Court finds that he
is qualified to commence this action without prepayment of the
filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff’s
request for permission to proceed in forma pauperis is GRANTED.
II.
Application of the Prison Litigation Reform Act
The Prison Litigation Reform Act, codified at 28 U.S.C.
§ 1915, requires a district court to dismiss an in forma pauperis
complaint if the action is frivolous or malicious; fails to state
a claim on which relief may be granted; or seeks monetary relief
against a defendant who is immune from such relief.
See 28 U.S.C.
§ 1915(e)(2)(B)(i-iii); 28 U.S.C. § 1915A(a)&(b); Abbas v. Dixon,
480 F.3d 636, 639 (2d Cir. 2007).
The Court is required to dismiss
the action as soon as it makes such a determination.
28 U.S.C. §
1915A(a).
It is axiomatic that pro se complaints are held to less
stringent standards than pleadings drafted by attorneys and the
Court
is
required
to
read
the
Plaintiff’s
pro
se
Complaint
liberally and interpret it raising the strongest arguments it
suggests.
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,
167 L. Ed. 2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9, 101 S.
Ct. 173, 66 L. Ed. 2d 163 (1980); Pabon v. Wright, 459 F.3d 241,
248 (2d Cir. 2006); (McEachin v. McGuinnis, 357 F.3d 197, 200 (2d.
Cir. 2004) (“[W]hen the plaintiff proceeds pro se, . . . a court is
obliged to construe his pleadings liberally, particularly when they
3
allege civil rights violations.”).
Moreover, at this state of the
proceeding, the Court assumes the truth of the allegations in the
complaint.
See Hughes, 449 U.S. at 10; Koppel v. 4987 Corp., 167
F.3d 125, 127 (2d Cir. 1999).
III.
Section 1983
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured.
42 U.S.C. § 1983.
To state a claim under Section 1983, a plaintiff
must “allege that (1) the challenged conduct was attributable at
least in part to a person who was acting under color of state law
and (2) the conduct deprived the plaintiff of a right guaranteed
under the Constitution of the United States.”
Rae v. County of
Suffolk, No. 07-CV-2138 (RRM)(ARL), 2010 WL 768720, at *4 (E.D.N.Y.
Mar. 5, 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.
1999)).
Section 1983 does not create a substantive right; rather,
to recover, a plaintiff must establish the deprivation of a
separate, federal right.
See Thomas v. Roach, 165 F.3d 137, 142
(2d Cir. 1999).
A municipal body, such as a county, may not be held
liable under Section 1983 for the unconstitutional acts of its
employees absent an allegation that such acts are attributable to
4
a municipal custom, policy or practice.
See Monell v. New York
City Dep. of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018,
2035-36, 56 L. Ed. 2d 611 (1978); see also Hartline v. Gallo, 546
F.3d 95, 103 (2d Cir. 2008) (Section 1983 requires a plaintiff
suing a municipality to show “an injury to a constitutionally
protected right . . . that . . . was caused by a policy or custom
of the municipality or by a municipal official ‘responsible for
establishing final policy.’”).
In addition, in order to state a claim for relief under
Section 1983 against an individual defendant, a plaintiff must
allege the personal involvement of the defendant in the alleged
constitutional deprivation.
Cir. 2010).
Farid v. Elle, 593 F.3d 233, 249 (2d
The Supreme Court held in Ashcroft v. Iqbal, __ U.S.
__, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009) that “[b]ecause
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.”
Id.
Thus, a plaintiff asserting a Section 1983
claim against a supervisory official in his individual capacity
must sufficiently plead that the supervisor was personally involved
in the constitutional deprivation. Rivera v. Fischer, 655 F. Supp.
2d 235, 237 (W.D.N.Y. 2009).
A complaint based upon a violation
under Section 1983 that does not allege the personal involvement of
a defendant fails as a matter of law.
5
See Johnson v. Barney, 360
Fed. Appx. 199, 2010 WL 93110, at *1 (2d Cir. Jan. 12, 2010).
With
these standards in mind, the Court considers the Plaintiff’s claims
A.
Claims Against Sheriff Michael Sposato and the Nassau
County Attorney
Although Plaintiff names Sheriff Sposato and the Nassau
County Attorney as Defendants, there are no factual allegations
concerning these Defendants, nor are they even mentioned in the
body of the Complaint.
Thus, it appears Plaintiff seeks to hold
these Defendants liable solely because of the positions they hold.
As set forth above, a plausible Section 1983 claim must allege the
personal involvement of the defendant in the alleged constitutional
violation.
See, supra at 5-6.
Similarly, a plaintiff asserting a
Section 1983 claim against a supervisory official in his individual
capacity must sufficiently plead that the supervisor was personally
involved in the constitutional deprivation. Rivera v. Fischer, 655
F. Supp. 2d 235, 237 (W.D.N.Y.2009); see also Warren v. Goord, 476
F. Supp. 2d 407, 413 (S.D.N.Y 2007), aff'd., 368 F. App’x 161 (2d
Cir. 2010) (“It is well settled in this Circuit that ‘personal
involvement of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under §1983.’”) (quoting
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
A supervisor
cannot be liable for damage under Section 1983 solely by virtue of
being
a
supervisor
because
liability under Section 1983.
there
is
no
respondent
superior
Richardson v. Goord, 347 F.3d 431,
435 (2d Cir. 2003).
6
Here, Plaintiff's Complaint does not include any factual
allegations sufficient to demonstrate any personal involvement of
Defendant Sposato or the County Attorney. Accordingly, the Section
1983 claim asserted against these Defendants are not plausible and
are dismissed.
B.
Claims Against NCCC
NCCC is an “administrative arm” of the County of Nassau
and, thus, “lacks the capacity to be sued” under Section 1983.
Mendez v. Sposato, No. 10-CV-5219 (JS)(WDW), 2011 WL 976468, *3
(E.D.N.Y. Mar. 15, 2011); Hawkins v. Nassau County Correctional
Facility, No. 10-CV-1808 (JFB)(AKT), 2011 WL 441798, *1 n. 1
(E.D.N.Y. Feb. 8, 2011).
Accordingly, the Complaint is dismissed
as against NCCC.
C.
Claims Against Nassau County
To the extent that the Complaint purports to allege a
Section 1983 claim against Nassau County based on the misconduct of
its personnel, such claims are insufficiently pled.
Plaintiff
wholly fails to allege that any of the challenged actions were
undertaken pursuant to a municipal policy, practice or custom that
deprived Plaintiff of a constitutional right as is required by
Monell, 436 U.S. 658 (1978) and its progeny.
Accordingly, the
Complaint fails to state a plausible claim against Nassau County
and is dismissed.
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D.
Inadequate Medical Care Claim
As
stated
above,
Section
1983
does
not
create
a
substantive right; rather, to recover, a plaintiff must establish
the deprivation of a separate, federal right. See Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999).
Here, Plaintiff does not state
which federal right was allegedly violated.
Affording the pro se
complaint a liberal reading, it appears that Plaintiff claims
inadequate medical care in violation of the Eighth Amendment.
Insofar as Plaintiff seeks to hold Defendants liable under Section
1983 for his being placed on the adolescent tier, such claim is not
plausible.
conduct
Although Defendants may have been negligent, such
does
not
give
rise
to
a
Constitutional
violation.
Catanzaro v. Weiden, 140 F.3d 91, 97, n. 1 (2d Cir. 1998) (noting
“the general proposition that mere negligence cannot constitute a
due process violation”) (citing Daniels v. Williams, 474 U.S. 327,
332 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986) (“noting that to
hold that negligence could amount to a constitutional violation
‘would trivialize the centuries-old principle of due process of
law’”).
Accordingly, Plaintiff’s claim regarding his housing on
the adolescent tier is dismissed.
Plaintiff is granted leave to amend his Complaint to
allege
that
a
particular
individual
or
individuals
deliberately indifferent to his serious medical needs.
were
See, e.g.
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222
8
(1962) (“If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits.”); Chavis,
618 F.3d at 170 (when addressing a pro se complaint, a district
court should not dismiss without granting leave to amend at least
once “when a liberal reading of the complaint gives any indication
that a valid claim might be stated.”); see also Farmer v. Brennan,
511 U.S. 825, 834-35, 114 S. Ct. 1970, 1977-78, 128 L. Ed. 2d 811
(1994); Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
In
the amended complaint, Plaintiff must provide a statement of his
claim, including the dates that he requested and/or received
medical treatment and he must identify the individual(s) who were
personally involved.
If Plaintiff cannot identify the person(s)
within the time allowed in this Order, he may designate the
defendant(s) as “John/Jane Doe(s), Badge #____ (if known), employed
at (location) on (date)” in the caption and in the body of the
Amended Complaint along with descriptive information.
The Amended Complaint must be filed within thirty (30) days of
the
entry
date
of
this
Order.
It
must
be
titled
“Amended
Complaint” and bear the same docket number as this Order, No. 11CV-3130 (JS)(AKT). If Plaintiff fails to file an Amended Complaint
within the time allowed, the Complaint shall be dismissed and
judgment shall enter.
If Plaintiff files an Amended Complaint, it
shall be reviewed pursuant to 28 U.S.C. § 1915A.
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CONCLUSION
For
the
reasons
set
forth
above,
the
Plaintiff’s
application to proceed in forma pauperis is granted, the Complaint
is sua sponte dismissed as to Nassau County, Sheriff Sposato, the
County Attorney, and NCCC pursuant to 28 U.S.C. § 1915A(b).
Plaintiff is granted leave to file an Amended Complaint as set
forth in this Order within thirty (30) days from the date that
notice of entry of this Order is served upon him.
If Plaintiff
fails to file an Amended Complaint within this time period,
judgment shall enter.
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 the purpose of
any appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
July
20 , 2011
Central Islip, New York
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