Lewis v. Nassau County Jail et al

Filing 9

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is granted, but the Complaint is sua sponte dismissed as against the Nassau County Jail with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) and is dismissed as against the remaining Defendants unless Plaintiff files an Amended Complaint as set forth herein within thirty (30) days from the date this Order is served with no tice of entry upon Plaintiff. Furthermore, the Clerk must mail a copy of this Order to the Plaintiff. 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 2/14/12. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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O’KEITH LEWIS, JR.,
Plaintiff,
ORDER
11-CV-4242(JS)(ARL)

-againstNASSAU COUNTY JAIL, ARMOR CORRECTIONAL
SERVICES, MR. COWAND, MCMUMMAN, Sergeant,
MR. GIARINO, MR. ACCORDING, MT. MCGOVERN,
Sergeant, MR. MANKAWASKI, PI NASSAU
COUNTY CORRECTIONAL SERVICES, INC.,

Defendants.
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APPEARANCES:
FOR Plaintiff:
O’Keith Lewis, Pro Se
28 James LL Burrell Avenue
Hempstead, NY 11550
For Defendants:

No Appearance.

SEYBERT, District Judge:
Pending before the Court is the Complaint of incarcerated
pro se plaintiff O’Keith Lewis (“Plaintiff”) pursuant to 42 U.S.C.
§ 1983 against the Nassau County Jail, Armor Correctional Services,
Mr. Cowand, Sergeant McMumman, Mr. Giarino, Mr. According, Sergeant
Mt. McGovern, Mr. Mankawaski, and PI Nassau County Correctional
Services, Inc. (collectively, “Defendants”).

Accompanying the

Complaint

forma

is

an

application

to

proceed

in

pauperis.

Plaintiff’s request for permission to proceed in forma pauperis is
GRANTED.

However, for the reasons that follow, the Complaint is

sua sponte dismissed as against Defendant Nassau County Jail with
prejudice.

The claims against the remaining Defendants are sua

sponte dismissed unless the Plaintiff files an Amended Complaint as

set forth below within thirty (30) days from the date this Order is
served with notice of entry upon him.
BACKGROUND
According to the brief handwritten Complaint, on August
4,

2011,

Plaintiff,

while

handcuffed,

was

directed

by

an

unidentified corrections officer to remove his “du-rag” from his
head or else “we’ll remove it our self.”

(Compl. at ¶ IV).

Plaintiff claims that he told the officer not to touch him and,
“out of no where [Plaintiff] was grab[bed] by [his] neck and told
to shut up with profanity.” (Id.). Plaintiff alleges that several
unidentified officers and a corporal then arrived and Plaintiff was
repeatedly choked, dragged down the hall and thrown into a holding
cell.

(Id.).

Plaintiff complains that he was left in the holding

cell for several hours without a shirt or socks.

As a result of

the alleged incident, Plaintiff claims to have suffered two black
eyes, a chipped tooth, “jaw freezing”, and serious headaches.
(Id.).

Plaintiff next alleges that, on August 10, 2011, while

housed in “B3-7 Cell” he “almost lost my whole front row of teeth,
can’t swallow food.” Plaintiff claims that his upper gums are sore
“from banging my face 6 times” and from “punching and ma[cing] me
over 5 times caus[ing] me to pass out.”

Plaintiff further alleges

that he was kept “in a box 24/7 so I couldn’t seek treatment from
August 10, 2011 to August 26[, 2011].”

(Id. at ¶ IV.A.).

In

addition, Plaintiff claims that he was “phone restricted for
2

several days” so he couldn’t call anyone and that the sink in the
area where he was housed did not work and he became dehydrated from
lack of water.

(Id.).

As a result of the foregoing, Plaintiff claims, inter
alia, that his “leg was scrap[ed] up”, that he “couldn’t sleep for
2 week[s] [be]cause of headache[s]”, and that he suffers from
stress and depression.
damages.

Plaintiff seeks to recover $20 million in

(Id. at ¶V).
DISCUSSION

I.

In Forma Pauperis
Having reviewed Plaintiff’s declaration in support of his

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(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.

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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 as 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
allege civil rights violations.”).

Moreover, at this stage 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
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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).
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. Ellen, 593 F.3d 233, 249 (2d

The Supreme Court held in Ashcroft v. Iqbal, 556 U.S.

662, 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 F. Appx. 199 (2d Cir. Jan. 12, 2010).

With these

standards in mind, the Court considers the Plaintiff’s claims.
A.

Claims Against the Individual Defendants Cowand,
McMumman, Giarino, According, McGovern and Mankawski
In order for a plaintiff to state a claim for relief

under Section 1983, he must allege the personal involvement of a
defendant in the purported constitutional deprivation.

Farid v.

Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke,
449 F.3d 470, 484 (2d Cir. 2006)).

The Supreme Court held in

Ashcroft v. Iqbal, 556 U.S. 662, 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

individual actions, has violated the Constitution.”

Id.

own
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.

See Johnson v. Barney, 360 F. Appx. 199 (2d Cir. Jan. 12,

2010).
Here, Plaintiff does not allege any wrongful conduct by
any of the individual Defendants. In fact, apart from the caption,
none of the individual Defendants are again mentioned in the body
of the Complaint. Given the absence of any allegations of personal
involvement

by

any

of

the

individual

Defendants

in

the

unconstitutional conduct alleged, Plaintiff’s Section 1983 claims
against these Defendants are not plausible and are dismissed with
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prejudice unless Plaintiff files an Amended Complaint alleging the
personal

involvement

of

those

individuals

in

the

alleged

constitutional deprivation and identifying such individuals within
thirty (30) days from the date this Order is served with notice of
entry upon him.

If Plaintiff cannot identify the individuals

personally involved in the constitutional deprivations within the
time allowed in this Order, he may designate those Defendants as
“John/Jane Doe, working at (location) on (date)” in the caption and
in the body of the Amended Complaint and provide descriptive
information of those individuals in the body of the Amended
Complaint to allow for their subsequent identification.
B.

Claims Against the Nassau County Jail
It is well-established that departments that are merely

administrative arms of a municipality do not have an independent
legal identity apart from the municipality and, therefore, cannot
sue

or

be

sued.

See

Hawkins

v.

Nassau

County

Correctional

Facility, 781 F. Supp. 2d 107, 109 n. 1 (E.D.N.Y. 2011); Carthew v.
County of Suffolk, 709 F. Supp. 2d 188, 195 (E.D.N.Y. 2010). Since
the Nassau County Jail is an administrative arm of Nassau County,
without a legal identity separate and apart from the County, it
lacks the capacity to be sued.

Accordingly, Plaintiff’s claims

against the Nassau County Jail are dismissed in their entirety with
prejudice.

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C.

Claims Against Defendants Armor Correctional Services
and PI Nassau County Correctional Services, Inc.
Apart from the caption, the Complaint does not again

mention either of these Defendants.

Accordingly, the Complaint

fails to provide sufficient notice to these Defendants of the
claims against them.

See Fed. R. Civ. P. 8.

Rule 8 of the Federal

Rules of Civil Procedure requires a pleading to contain a short,
plain statement of claim against each defendant named so that they
have adequate notice of the claims against them. Iqbal, 129 S. Ct.
at 1949 (Rule 8 “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”).

Plaintiff must provide fair

notice such that the Defendants are able to “answer and prepare for
trial, allow the application of res judicata, and identify the
nature of the case so it may be assigned the proper form of trial.”
Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).

Given the

absence of any allegations against these Defendants, the Complaint
is clearly insufficient.
However, because a district court should not dismiss a
pro se complaint “when a liberal reading of the complaint gives any
indication that a valid claim might be stated,” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010), the claims against Defendants
Armor Correctional Services and PI Nassau County Correctional
Services,

Inc.,

will

be

dismissed

with

prejudice

unless

the

Plaintiff files an Amended Complaint within thirty (30) days of the
date that this Order is served with notice of entry upon him.
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CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is granted, but the Complaint is sua
sponte dismissed as against the Nassau County Jail with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) and is dismissed as
against the remaining Defendants unless Plaintiff files an Amended
Complaint as set forth herein within thirty (30) days from the date
this

Order

is

served

with

notice

of

entry

upon

Plaintiff.

Furthermore, the Clerk must mail a copy of this Order to the
Plaintiff.
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:

February 14, 2012
Central Islip, New York

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