Owens, Jr. v. DeMarco

Filing 5

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that Plaintiff's application to proceed in forma pauperis is granted; and it is further, ORDERED that Plaintiff's claims against DeMarco are dismisse d with prejudice pursuant to 28 U.S.C. §§ 1915 and 1915A for failure to state a claim unless the Plaintiff files an Amended Complaint alleging the personal involvement of DeMarco in the alleged constitutional deprivations within thirty (30) days from the date this Order is served upon him, and it is further, ORDERED that Plaintiff's deliberate indifference claims are sua sponte dismissed with prejudice pursuant to 28 U.S.C. §§ 1915 and 1915A, for failure to state a claim unless the Plaintiff files an Amended Complaint in accordance with this Order within thirty (30) days from the date this Order is served upon him. CM to pro se plaintiff on 12/6/2011. Ordered by Judge Joanna Seybert on 12/6/2011. (Glueckert, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------X

HAROLD OWENS, JR.,

Plaintiff,
MEMORANDUM AND ORDER
11-CV-5598 (JS) (WDW)

-againstSHERIFF VINCENT F. DEMARCO,
Defendant.

-----------------------------------X
APPEARANCES:
For Plaintiffs:

Harold Owens, Jr. Pro Se
421751
Suffolk County Correctional Facility
110 Center Drive
Riverhead, NY 11901
No appearance

For Defendant:

SEYBERT, District Judge:
On November
Harold Owens, Jr.
U.S.C.

§

DeMarco

2011,

("Plaintiff")

incarcerated pro

se

plaintiff

filed a complaint pursuant to 42

1983 ("Section 1983") against defendant Sheriff Vincent F.
("Defendant"),

forma pauperis.
in

15,

along with an application to proceed in

Upon review of Plaintiff's application to proceed

forma pauperis,

the

Court

finds

that

Plaintiff's

financial

status qualifies him to commence this action without prepayment of
the filing fee.

Accordingly, the application to proceed in forma

pauperis is granted pursuant to 28 U.S.C.
reasons that follow,

§

1915.

However, for the

the Complaint is sua sponte dismissed with

leave to file an Amended Complaint within thirty

(30)

days as

detailed below.
THE COMPLAINT
Plaintiff, an inmate at the Suffolk County Correctional

Facility,

filed a

brief handwritten Complaint submitted on the

Court's civil rights complaint form.

Plaintiff claims:

We are subject to unsafe living conditions:
(1) black mold all over the ventilation system
(Entirely)
that
leaks
rain
water
and
condensation attached to completely rusted air
vents; (2) rusted faucets water and green
algae growing under clear knobs, poor shower
drainage to the point where the shower
regurgitates the sewage while showering; (3)
extremely cold, sub par heating; (4) rats and
spiders infestations; (5) meals not meeting
dietary standards, being served cold, not
proper footwear, and the medical and dental
evaluations aren't being met in a timely
matter [sic] .
(Comp. at
a

~IV)

description

.

The section of the Complaint form that calls for
of

any

claimed

injuries,

any

medical

treatment

required and whether such medical treatment was received is blank.
(Compl. at~ IV. A).
not

allege

any

($500, 000, 000.00)

Notwithstanding the fact that Plaintiff does
injury,

he

seeks

five

dollars in monetary relief.

hundred
(Comp.

Further, Plaintiff requests:
Injunctive relief; remove black mold, fix
leaks, allow us to wear personal shoes, fix
backed up toilets and showers [and] drains
[and] issue extra blankets, exterminate the
spiders and rats, increase portion of meals,
have heated meals, including hot breakfast
meals,
direct
facility personnel not to
threaten or transfer any plaintiffs as a
retaliation for this action.
(Id.).
DISCUSSION
I.

In Forma Pauperis Application

2

million
at

~

V).

Upon review of the Plaintiff's application, the Court
finds that Plaintiff's financial status qualifies him to commence
this action without prepayment of the $350.00 filing fee.

u.s.c.

1915 (a) (1).

1914 (a) ,

§§

Accordingly,

See 28

Plaintiff's

application to proceed in forma pauperis is granted.
II.

Application of 28 U.S.C.

§

1915

Pursuant to Section 1915 of Title 28, a district court
must dismiss an in forma pauperis complaint upon determining that
the action is "(1) frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from
a defendant who is immune from such relief."
28 U.S. C.

§

1915 (e) (2) (B);

.§..§.§.

28 U.S.C.

§

1915A(b);

Abbas v. Dixon, 480 F. 3d 636, 639

(2d Cir. 2007).
Courts
drafted

by

a

are

pro

required

~

to

liberally

plaintiff.

Sealed

construe
Plaintiff

pleadings
v.

Sealed

Defendant, 537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis,
357 F.3d 197,

200

(2d Cir.

2004).

A "pro se complaint,

however

inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers."
89,

94,

127 s.

Ct.

2197,

167 L.

Erickson v. Pardus, 551 U.S.

Ed.

2d 1081

(2007)

(internal

quotation marks and citations omitted); Harris v. Mills, 572 F.3d
66,

72

(2d Cir. 2009).

Moreover,

at the pleadings stage of the

proceeding, the Court must assume the truth of "all well-pleaded,
nonconclusory factual allegations"

in the complaint.

Royal Dutch Petroleum Co., 621 F.3d 111, 124
3

Kiobel v.

(2d Cir. 2010); see

also Jackson v. Birmingham Board of Education, 544 U.S. 167, 171,
125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005).
must plead

"enough facts

plausible on its face."
544,

570,

127 S.

Ct.

to

state a

However, a complaint

claim to relief

that

is

Bell Atlantic Corp. v. Twombly, 550 U.S.

1955,

167 L.

Ed.

2d 929

(2007);

~

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953, 173 L. Ed. 2d (2009).

also
"A

claim has facial .plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ct.

at

1949

allegations"

(citations
are

not

omitted).

required,

the

Iqbal, 129 S.

While

"detailed

factual

federal

pleading

standard

requires "more than an unadorned, the-defendant-unlawfully-harmedme accusation."
at

1955).

If

Id.
a

(quoting Twombly, 550 U.S. at 555, 127 S. Ct.

liberal

reading of

the

complaint

"gives any

indication that a valid claim might be stated," the Court must
grant leave to amend the complaint.

See Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000).
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 (2000).

For a plaintiff to state a Section 1983

4

claim, the complaint must allege that the challenged conduct was
"committed by a person acting under color of state law," and that
the

conduct

immunities
States."

"deprived

[a plaintiff]

secured by the

of

rights,

Constitution or

privileges,

laws

of

the

or

United

Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) cert.

u.s.

denied sub nom Cornejo v. Monn,
Ed. 2d 243 (2010)
Cir. 1994)).

, 131 S. Ct. 158, 178 L.

(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d

"Section 1983 itself creates no substantive rights;

it provides only a procedure for redress for the deprivation of
rights established elsewhere."

Sykes v. James,

13 F.3d 515, 519

(2d Cir. 1993).
A.

Claims Against Suffolk County Sheriff Vincent DeMarco
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.

Farid v. Ellen,

593 F.3d 233,

The Supreme Court held in Ashcroft v. Iqbal,
1937,

1948,

173 L.

liability

is

plaintiff

must

Ed.

2d 868

inapplicable
plead

that

(2009)

to

249

u.s.

Id.

1983

Government-official

through the official's own individual actions,
Constitution."

, 129 S. Ct.

that "[b] ecause vicarious
[section]

each

(2d Cir. 2010).

suits,

a

defendant,

has violated the

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.
5

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
See Costello v. City of

a defendant fails as a matter of law.

Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011); Johnson v. Barney,
360 F. Appx. 199 (2d Cir. Jan. 12, 2010).
Here, Plaintiff has not alleged the direct participation
of

defendant DeMarco

Complaint

or

any

in any of

basis

upon

the wrongdoing alleged in the

which

Accordingly,

supervisory capacity.

to

find

him

liable

in

a

Plaintiff's claims against

DeMarco are not plausible and are dismissed in their entirety with
prejudice unless Plaintiff files an amended complaint alleging the
personal

involvement

of

DeMarco

in

the

alleged

constitutional

deprivations within thirty (30) days from the date this Order is
served upon him.

B.

Challenge to the Conditions of Confinement
Upon a liberal construction, it appears that Plaintiff

seeks to allege a deliberate indifference claim challenging the
conditions of his confinement at the Suffolk County Correctional
Facility.

Plaintiff does not cite to a particular section of the

Constitution

nor

conviction.

Although the Eighth Amendment does not technically

apply to

a

indifference

does

pretrial
claim,

he

allege

detainee
the

in

standard

whether

he

the

context

of

review

is

pre-or

post-

of

a

deliberate

for

a

Fourteenth

Amendment Due Process claim for a pretrial detainee is the same as
that for an Eighth Amendment claim in the case of a
6

convicted

prisoner.

Caiazzo v. Koreman, 581 F.3d 631, 72 (2d Cir. 2009); see

also Phipps v. DeMarco, No. 11-CV-3717 (JS) (ARL), 2011 WL 3667755
(E.D.N.Y. Aug. 19, 2011).
The Eighth Amendment prohibits the infliction of "cruel
and

unusual

punishment,"

U.S.

CaNST.

Amend.

VIII,

and,

the

Fourteenth Amendment's Due Process clause makes it applicable to
the states.

Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003)

(citing Robinson v. Cal., 370 U.S. 660, 666-67, 82 S. Ct. 1417, 8
L.

Ed.

2d 758

(1962)).

Although it

is clear that the Eighth

Amendment "'does not mandate comfortable prisons, '"
permit inhumane treatment of those in custody.
249 F.3d 156, 164

(2d Cir. 2001)

it does not

Gaston v. Coughlin,

(citing Farmer v. Brennan,

511

U.S. 825, 832, 114 S. Ct. 1970, 1976, 128 L. Ed. 2d 811 (1994) and
Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400, 69 L.
Ed. 2d 59 (1981)).
Claims of poor confinement conditions can be the basis
for an Eighth Amendment claim,
unquestioned
Anderson v.

and

serious

Coughlin,

452 U.S. at 347,

Eighth

Amendment
that

indifference."

claims,
such

such conditions result

deprivations

757 F.2d 33,

Rhodes,

reflecting

if

35

of

basic

(2d Cir.

101 S. Ct. at 2399)
a

plaintiff

conditions

were

must

human
1985)
But,

also

imposed with

Wilson v. Seiter, 501 U.S. 294,

297,

"'in

needs'"
(quoting

like other

plead

facts

"deliberate
111 S. Ct.

2321, 2323, 115 L. Ed. 2d 271 (1991).
Here, although Plaintiff complains generally about the
7

conditions

at

the

Suffolk

County

Correctional

Facility,

the

allegations do not rise to the level of serious deprivation of
human need, see Anderson, 757 F.2d at 35.

Indeed, Plaintiff does

not even allege any injuries resulting therefrom.
A.).

(Compl. a t , IV.

Even if the Court were to liberally construe the allegations

in the Complaint as rising to the level of a serious deprivation of
human need, Plaintiff has wholly failed to allege that any of these
conditions were imposed with the requisite deliberate indifference.
Accordingly, the Complaint fails to allege a plausible deliberate
indifference claim and,

for the reasons set forth above,

dismissed pursuant to 28 U.S.C.

it is

1915A (b) (1).

§

However, because a district court should not dismiss a
pro se complaint 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," Chavis v. Chappius, 618 F.3d 162,
170

(2d

Cir.

Complaint.

2010),
Plaintiff

Plaintiff
is

is

warned

dismissed with prejudice unless

granted
that

he

leave

the

files

to

amend

Complaint

will

his
be

an Amended Complaint

within thirty (30) days of the date that this Order is served upon
him.

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).
8

IV.

Conclusion
For the foregoing reasons, it is hereby:
ORDERED that Plaintiff's application to proceed in forma

pauperis is granted; and it is further,
ORDERED

that

Plaintiff's

claims

against

dismissed with prejudice pursuant to 28 U.S.C.

§§

DeMarco

are

1915 and 1915A

for failure to state a claim unless the Plaintiff files an Amended
Complaint

alleging

the personal

involvement

of DeMarco

in

the

alleged constitutional deprivations within thirty (30) days from
the date this Order is served upon him, and it is further,
ORDERED that Plaintiff's deliberate indifference claims
are BY£ sponte dismissed with prejudice pursuant to 28 U.S.C.

§§

1915 and 1915A, for failure to state a claim unless the Plaintiff
files an Amended Complaint in accordance with this Order within
thirty (30) days from the date this Order is served upon him.

SO ORDERED.

/s/ JOANNA SEYBERT
JOANNA SEYBERT, U.S.D.J.
Dated: December 6, 2011
Central Islip, New York

9