Bellamy V. Dormer

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 Richard Dormer, Police Comm issioner, with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) and Plaintiff is granted leave to file an Amended Complaint as set forth herein within thirty (30) days from the date this Order is served with notice of entry upon Plai ntiff. 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 2/22/12. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
NEHEMIAH BELLAMY,
Plaintiff,
ORDER
11-CV-6123(JS)(AKT)

-againstRICHARD DORMER, Suffolk County
Police Commissioner,

Defendant.
-----------------------------------X
APPEARANCES:
For Plaintiff:
Nehemiah Bellamy, Pro Se
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
For Defendant:

No Appearance.

SEYBERT, District Judge:
On December 15, 2011, pro se plaintiff Nehemiah Bellamy
(“Plaintiff”) filed a Complaint in this Court pursuant to 42 U.S.C.
§ 1983 against Richard Dormer, Suffolk County Police Commissioner
(“Defendant”).

Accompanying the Complaint is an application to

proceed in forma 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 the
Defendant with prejudice and Plaintiff is granted leave to file 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
The brief handwritten Complaint submitted on the Court’s
Section 1983 complaint form alleges the following in its entirety:

The Police Commissioner Richard Dormer acting
under color of law by and through his
officers, agents and employees, particularly
Police Officer Sean Hanley, P.I.D. #40060
Shield #5740, Police Officer Reese, Shield
#6030 and Detective Guido R. Cirenza, P.I.D.
#33613, Shield #1381 violated my Federal
constitutional rights by illegally detaining
me, which is a violation of the 4th Amendment
where my right is to be secured in my person,
house, papers and effects against unreasonable
searches and seizures shall not be violated
and no warrants shall issue but upon probable
cause supported by oath or affirmation and
particularly describing the place to be
searched and the persons or things to be
seized. The above mentioned officers did not
clearly establish constitutional procedure
under such admendment [sic] as where they
removed me from my home without proper
warrant. Therefore illegally detaining me.
(Compl. at ¶ IV, and page 5 annexed thereto).

As a result,

Plaintiff seeks to recover “monetary damages in the sum certain
amount of $350,000,000.00.”

(Compl. 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

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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.

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
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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).
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, 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.
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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.

See Johnson

v. Barney, 360 F. App’x 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 Richard Dormer, Police Commissioner
Although Plaintiff names Police Commissioner Richard

Dormer as the sole Defendant, there are no factual allegations
concerning any conduct attributable to him in the Complaint. Thus,
it appears Plaintiff seeks to hold the Defendant liable solely
because of the position he holds.

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

4-5. Similarly, a plaintiff asserting a Section 1983 claim against
a supervisory official in his individual capacity must sufficiently
plead

that

the

supervisor

constitutional deprivation.

was

personally

involved

in

the

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

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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)).
for

damage

under

Section

1983

A supervisor cannot be liable
solely

by

virtue

of

being

a

supervisor because there is no respondent superior liability under
Section 1983.

Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.

2003).
Here, Plaintiff's Complaint does not include any factual
allegations sufficient to demonstrate any personal involvement of
Defendant Dormer.

Accordingly, the Section 1983 claim asserted

against the Defendant is not plausible and is dismissed.
B.

Leave to File an Amended Complaint
A district court should not dismiss a pro se complaint

“‘without [the Court] 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. 2010) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir.
1991)).

Given the allegations in the Complaint, the Court affords

Plaintiff an opportunity to name a proper Defendant.

Plaintiff is

granted leave to file an Amended Complaint to name the individual
or individuals whom he claims violated his constitutional rights
and to allege the personal involvement of those individuals in the
alleged constitutional deprivation within thirty (30) days from the
date this Order is served with notice of entry upon him.
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Plaintiff

has identified three individuals in the body of the present
Complaint.

To the extent these are the individuals whom he claims

violated his constitutional rights, Plaintiff shall so state in any
Amended Complaint and include the personal involvement of each such
individual in the alleged constitutional violation.
If there are other individuals that Plaintiff seeks to
name as Defendants in his Amended Complaint and he cannot identify
the

individuals

deprivations

personally

within

the

time

involved

in

the

allowed

in

this

constitutional
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.
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 Richard Dormer, Police Commissioner,
with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) and
Plaintiff is granted leave to file 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)
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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
22 , 2012
Central Islip, New York

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