Jandres v. Nassau County Medical Center et al
Filing
11
ORDER - The Clerk of the Court shall consolidate the two above-captioned cases under the first filed case, 12-CV-3132(JS)(GRB) and shall close the case with docket number 12-CV-4984(JS)(GRB). Any further filings in that case shall be made under d ocket number 12-CV-3132(JS)(GRB). Plaintiff's claims against the Jail, the County, NHCC, Sergeant Miller, Capt. Ford and Sheriff Sposato are dismissed without prejudice. Plaintiff's claims against Armor and Officer Evans shall proceed and the Clerk of the Court is directed to forward copies of the Summonses, the Complaint, the Amended Complaint and this Order to the USMS for service upon Armor and Officer Evans forthwith. Finally, no summonses shall issue at this time for the Defenda nts identified by Plaintiff as "John Doe", "Jane Doe", "Dr. K", "P.H. Smith", "Mr. Carlos" and "Ms. Peg". Rather, the Clerk of the Court is directed to serve a copy of the Complaint, the A mended Complaint and this Order on the Nassau County Attorney. The Nassau County Attorney's Office is requested to attempt to ascertain the full names of the individuals that Plaintiff seeks to sue as described in the pleadings and provide the address(es) where each such Defendant can be served to the Court and the Plaintiff within thirty (30) days of the date this Order is served upon it. Once the information is provided to the Court by the Nassau County Attorney's Office, Plaintiff 's Complaint shall be deemed amended, summonses shall be issued as to those Defendants and the USMS shall serve those Defendants. 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 10/24/12. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
WILLIAM JANDRES,
FILED
CLERK
11/21/2012 10:17 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Plaintiff,
ORDER
12-CV-3132(JS)(GRB)
-againstCOUNTY OF NASSAU COUNTY,
JOHN DOE, JANE DOE, NASSAU
COUNTY CORRECTIONAL CENTER,
ARMOR HEALTH CARE C/INC.,
JOHN DOE, JANE DOE, DOCTOR K,
P.H. SMITH, OFFICER EVANS,
BADGE # 210, SERGEANT MILLER,
CAPT. FORD, NASSAU COUNTY
MEDICAL CENTER, JOHN AND JANE
DOE, ORTHOPEDIC SPECIALIST
MR. CARLOS, and NURSE MS. PEG,
Defendants.
----------------------------------X
WILLIAM JANDRES,
Plaintiff,
-against-
12-CV-4984(JS)(GRB)
COUNTY OF NASSAU, ARMOR
CORRECTIONAL HEALTH CARE INC.,
P.H. SMITH, CAPT. FORD, DR. K,
NURSE GREG, MICHAEL SPOSATO,
ORTHOPEDIC SPECIALIST MR. CARLOS,
NURSE MS. PEG, NASSAU COUNTY
CORRECTIONAL FACILITY,
Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff:
William Jandres, Pro Se
79047053
Queens Private Detention Facility
182-22 150th Ave.
Jamaica, NY 11413
For Defendants:
No Appearances
SEYBERT, District Judge:
By Order dated July 25, 2012, the undersigned granted the
application
of
incarcerated
pro
se
plaintiff
William
Jandres
(“Plaintiff”) to proceed in forma pauperis in relation to his
Complaint assigned docket number 12-CV-3132(JS)(GRB), and sua
sponte dismissed the Complaint with leave to file an Amended
Complaint by August 25, 2012.
By letter dated August 24, 2012,
Plaintiff sought a ninety-day extension of the Court’s deadline.
By Order dated September 4, 2012, the Court extended Plaintiff’s
deadline to file an Amended Complaint through October 22, 2012.
Also on September 4, 2012, the Court received Plaintiff’s
Amended Complaint.
The Amended Complaint alleges pursuant to 42
U.S.C. § 1983 that Plaintiff’s Eighth Amendment rights to were
violated by the defendants, namely the County of Nassau (“the
County”), Nassau County Correctional Center (“the Jail”), Armor
Health Care C/Inc. (“Armor”), Doctor K (“Dr. K”), P.H. Smith
(“Smith”), Officer Evans,
Miller,
Capt.
Ford,
Badge # 210 (“Officer Evans”), Sergeant
Nassau
County
Medical
Center
(“NCMC”),
Orthopedic Specialist Mr. Carlos, Nurse Ms. Peg, and John and Jane
Does
(collectively,
“the
Defendants”).
More
specifically,
Plaintiff claims that the Defendants were deliberately indifferent
to his serious medical needs and, as a result, Plaintiff seeks to
recover $27 million in damages.
On October 1, 2012, Plaintiff filed a new Complaint,
assigned docket number 12-CV-4984(JS)(GRB) (the “Second Action”),
2
against all of the same Defendants as those named in the Amended
Complaint filed by Plaintiff under docket number 12-CV-3132 (JS)
(GRB) (the “First Action”).
In addition, Plaintiff names Nurse
Greg and Sheriff Michael Sposato as defendants in the Second
Action.
Like the First Action, the Second Action is brought
pursuant to Section 1983 and purports to allege that Plaintiff’s
Eighth Amendment rights were violated by the Defendants in that
they were deliberately indifferent to his serious medical needs.
As a result, Plaintiff seeks to recover $30 million in damages in
the Second Action.
Upon review of the Amended Complaint in the First Action
and the Complaint in the Second Action, the Court finds that
consolidation is appropriate pursuant to Federal Rule of Civil
Procedure 42.
Both actions involve common questions of law and
fact, and consolidation would serve the interests of judicial
economy and would avoid unnecessary costs or delay.
“The Second
Circuit has long adhered to the first-filed doctrine in deciding
which case to dismiss when there are competing litigations.
Where
there are several competing lawsuits, the first suit should have
priority, . . . .”
Kellen Co. v. Caphalon Corp., 54 F. Supp. 2d
218, 221 (S.D.N.Y. 1999) (internal quotations, alterations and
citations omitted); see also Adam v. Jacobs, 950 F.2d 89, 92 2d
Cir. 1991).
Accordingly, the Clerk of the Court shall consolidate
the two above-captioned cases under the first filed case, 12-CV-
3
3132(JS)(GRB) and shall close the case with docket number 12-CV4984(JS)(GRB).
Any further filings in that case shall be made
under docket number 12-CV-3132(JS)(GRB).
Given the consolidation,
the pending in forma pauperis application in the Second Action is
denied as moot.
For the reasons set forth below, the claims against the
the Jail, the County, NCMC, Sergeant Miller, Capt. Ford and Sheriff
Sposato are sua sponte dismissed without prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
The Allegations
Plaintiff’s Amended Complaint and Complaint in the Second
Action purport to allege that Plaintiff’s Eighth Amendment rights
were violated because he has been denied medical treatment for
various ailments. More specifically, Plaintiff describes that when
he arrived at the Jail on March 28, 2011, he was feeling pain in
his
neck
and
left
shoulder
that
Plaintiff
attributes
to
a
November 10, 2010 car accident. Am. Compl. at 6. Plaintiff claims
that he “put in a few sick call sheets to the Nassau County Medical
Center [] requesting an evaluation of my injuries.” Id. Plaintiff
alleges that his sick call slips were denied because NCMC was
“leaving the jail” since their “contract was up.”
Id.
Plaintiff
claims that “I should have been properly evaluated for pinpointing
exactly what my injuries were, followed by treatment. . . .
of this accured [sic].”
Id.
4
None
Plaintiff next describes that, on August 10, 2011, he
slipped and fell on a wet floor while walking accompanied by
Officer Evans.
Am. Compl. at 7.
According to Plaintiff, Officer
“Evans filled out an injury report, but failed to get me proper
medical care.”
Id.
Plaintiff claims that Officer Evans “should
have followed procedures and reported it to his supervisors who
then should have taken me to an outside hospital.”
Id.
Plaintiff
further claims that Officer Evans “was aware of the fact that I had
sustained some serious injuries” but instead “refus[ed] to get me
help . . . [and] . . .
sent me to the new care provider called
‘Armor Correctional Health, Inc.’” Id. at 7-8. Once at the health
clinic later that day, Plaintiff claims that he provided the injury
report to the “doctors and nurses that I saw” and advised them that
his back, neck, left shoulder and right knee were all causing him
“severe pain.”
Id. at 9.
Plaintiff claims that the doctors and
nurses “dismissed it lightly, saying it was normal to be sore after
a fall.”
Id.
On September 22, 2011 and October 19, 2011, Plaintiff
claims that he was told by a nurse that he would be seen by a
doctor, but that never happened.
Id. at 10.
According to
Plaintiff, he was finally seen by a doctor on November 22, 2011,
who allegedly diagnosed Plaintiff with having arthritis and denied
his requests to have X-rays or MRIs taken.
Id.
Plaintiff claims
that the doctor said that he would be scheduled for a consult with
5
an orthopedic specialist, but that did not happen.
Id. at 11.
Rather, on December 1, 2011, Plaintiff began physical therapy and,
“a couple of months later” Plaintiff was examined by orthopedic
specialist “Mr. Carlos.”
Id.
Mr. Carlos is alleged to have sent
Plaintiff for an MRI of his back and left shoulder though Plaintiff
complains that he should have also had an MRI taken of his knee.
Id. at 12.
The MRI is alleged to show that Plaintiff has a bulging
disc on his left shoulder and “an impingement & downslope of the
acromian [sic].”
Id.
According to Plaintiff, physical therapy
continued but his requests for an MRI of his knee were ignored even
though his knee “kept popping out.”
Plaintiff claims that Mr.
Carlos informed Plaintiff that Armor did not allow for him to order
an MRI of Plaintiff’s knee because it “cost[s] too much money.”
Id.
Plaintiff claims that “a couple of weeks later” his physical
therapy was discontinued.
Id. at 13.
Plaintiff also alleges that, on June 18, 2012, he was
seen by “P.H. Smith as a result of all of the sick call sheets I
filled out previously.”
Compl. in the Second Action at 6.
Plaintiff describes that he told P.H. Smith that Plaintiff was in
pain, that the left side of his body was numb, that he was having
severe headaches, and that his “right knee kept popping out of
place simply by walking.”
P.H. Smith is alleged to have
Id.
acknowledged that Plaintiff has a bulging disc, impingement, and
downslope of the left shoulder, but advised Plaintiff that there is
6
nothing
she
could
do
except
give
Plaintiff
Naproxin
because
“Armored Company Insurance would not cover any of my treatment.”
Id.
Plaintiff next alleges that he was taken to the health
clinic
by
wheel
chair
after
dizziness on June 19, 2012.
reporting
severe
headaches
and
Compl. in the Second Action at 7.
Plaintiff claims that he was seen by two “Jane Does” who work for
“Armor Correctional Inc. and the County of Nassau.” Id. Plaintiff
alleges that “the two ladies did not help me when I reported
numbness to the face, tongue, left arm and left leg.
They just
gave me 500 mg Tylenol and told me it was nothing.”
According
Id.
to Plaintiff, the “two ladies Jane Doe and Jane Doe were aware of
my serious medical needs yet failed to provide or seek proper
medical treatment for me.”
Id.
The next day, June 20, 2012, Plaintiff claims that he was
again not feeling well and was taken back to the health clinic,
where he was seen by P.H. Smith and “a male nurse Mr. Greg.”
Compl. in the Second Action at 9.
Plaintiff alleges that he
reported pain from his neck to his head and numbness to his face,
tongue, left arm, and left leg and foot.
Id.
Plaintiff claims
that he requested that he be taken to the hospital but P.H. Smith
said that “insurance would not pay for it” and instead instructed
Mr. Greg to give Plaintiff Flexerol and another, unspecified
medication.
Id.
7
The next day, June 21, 2012, Plaintiff was taken to
“Nassau County Hospital” following his complaints of pain, numbness
dizziness, and paralysis to his left eye in that he could not close
it.
Id. at 11.
At the hospital, Plaintiff claims he was diagnosed
with Bells Palsy and was advised by an unidentified doctor that,
had Plaintiff gotten medical treatment sooner, the medication would
have been more effective.
Id.
Plaintiff claims that although the
doctor prescribed tear drops and ointment for his eye on June 21,
2012, Plaintiff did not receive the drops or ointment until June
29, 2012.
Id. at 13.
Plaintiff describes that his eye was burning
with pain during the time he was without the medication. According
to Plaintiff, he was visited by Dr. K on June 26, 2012, who
allegedly ignored Plaintiff’s request for the tear drops and
ointment. Plaintiff further claims that he ran out of the ointment
in July and was given a new prescription by the “eye doctor John
Doe” but it has not been filled by “Armor Correctional Health Inc
and there [sic] workers.”
Id. at 14.
Plaintiff claims that his
“eye is burning with pain throughout the day and night.”
Id.
Plaintiff claims that he was “seen by Ortho Mr. Carlos
and
Nurse
Peg”
on
August
22,
2012
because
Plaintiff
was
experiencing pain in his lower back, neck, left shoulder and right
knee.
Id. at 5; see also Compl. in Second Action at 5.
Plaintiff
also reported that he was paralyzed on the left side of his face
and body.
Compl. in Second Action at 5.
8
According to Plaintiff,
Mr. Carlos advised Plaintiff that he needed a “whole new knee
replacement” but that there is no “treatment for his injuries”
available.
DISCUSSION
I.
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
liberally,
required
to
read
the
Plaintiff’s
pro
se
Complaint
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,
167 L. Ed. 2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97,
106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)); Chavis v. Chappius,
618 F.3d 162, (2d Cir. 2010), and to construe the allegations
therein “‘to raise the strongest arguments’” suggested.
Chavis,
618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18,
24 (2d Cir. 2010)).
Moreover, at the pleadings stage of the
9
proceeding, the Court must assume the truth of “all well-pleaded,
nonconclusory factual allegations” in the complaint.
Kiobel v.
Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L.
Ed. 2d 868 (2009)); see also Jackson v. Birmingham Board of
Education, 544 U.S. 167, 171, 125 S. Ct. 1497, 161 L. Ed. 2d 361
(2005).
A complaint must plead sufficient facts “to state a claim
to relief that is plausible on its face.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d
929 (2007).
“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.”
Iqbal, 129 S. Ct. at 1949 (citations omitted).
While “detailed
factual allegations” are not required, “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’”
Id. (quoting Twombly, 550 U.S.
at 555).
II.
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 . . . .
10
42 U.S.C. § 1983.
To state a Section 1983 claim, a plaintiff must
allege (1) that the challenged conduct was “committed by a person
acting under color of state law,” and (2) that such conduct
“deprived [the plaintiff] of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Cornejo
v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994)).
Section 1983 does not
create any independent substantive right; but rather is a vehicle
to “redress . . . the deprivation of [federal] rights established
elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999); see
also Rosa R. v. Connelly, 889 F.2d 435, 440 (2d Cir. 1989).
With
these standards in mind, the Court must consider the Plaintiff’s
Section 1983 claims against the Defendants.
A.
Claims against the Jail
As was detailed in the Court’s July 25, 2012 Order, the
Jail is not a sueable entity because it is an administrative arm of
Nassau County. See Order, dated July 25, 2012, Seybert, D.J. at 89.
“[U]nder New York law, departments that are merely adminis-
trative arms of a municipality do not have a legal identity
separate and apart from the municipality and therefore, cannot sue
or be sued.”
Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463,
477 (E.D.N.Y. 2002); see also In re Dayton, 786 F. Supp. 2d 809,
818 (S.D.N.Y. 2011); Hawkins v. Nassau Cnty. Corr. Facility, 781 F.
Supp. 2d 107, 109 at n. 1 (E.D.N.Y. 2011); Melendez v. Nassau
11
County, No. 10-CV-2516 (SJF)(WDW), 2010 WL 3748743, at *5 (E.D.N.Y.
Sept. 17, 2010) (dismissing claims against Nassau County Sheriff’s
Department
because
it
lacks
the
capacity
to
be
sued).
Notwithstanding the Court’s guidance, Plaintiff continues to name
the Jail as a Defendant. Because the Jail is an administrative arm
of Nassau County, without an independent legal identity, it lacks
the capacity to be sued.
Accordingly, Plaintiff’s claims against
the Jail are dismissed without prejudice.
B.
Claims against Nassau County
Again, as was detailed in the Court’s July 25, 2012
Order, a Section 1983 claim against a municipal entity such as
Nassau
County,
must
allege
“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.’”
Hartline v. Gallo, 546 F.3d 95, 103
(2d Cir. 2008) (quoting Skehan v. Village of Mamaroneck, 465 F.3d
96, 108-109 (2d Cir. 2006) overruled on other grounds by Appel v.
Spiridon, 531 F.3d 138, 140 (2d Cir. 2008)); see also Monell v.
Dep’t of Social Services of City of New York, 436 U.S. 658, 690-91,
98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
“Local governing bodies
. . . may be sued for constitutional deprivations pursuant to
governmental ‘custom’ even though such a custom has not received
formal
approval
channels.”
through
the
body’s
official
decision-making
Monell, 436 U.S. at 690-91 (citations omitted).
12
To
establish the existence of a municipal policy or custom, the
plaintiff must allege: (1) the existence of a formal policy which
is officially endorsed by the municipality; (2) actions taken or
decisions made by municipal officials with final decision making
authority, which caused the alleged violation of plaintiff’s civil
rights; (3) a practice so persistent and widespread that it
constitutes
a
custom
of
which
constructive
knowledge
and
acquiescence can be implied on the part of the policy-making
officials; or (4) a failure by policymakers to properly train or
supervise
their
subordinates,
amounting
to
“deliberate
indifference” to the rights of those who come in contact with the
municipal employees. Sulehria v. City of New York, 670 F. Supp. 2d
288, 320 (S.D.N.Y. 2009); see also Davis, 224 F. Supp. 2d at 478.
Here, Plaintiff’s pleadings are wholly devoid of any
allegations to support a plausible municipal liability claim. Even
affording the pro se Complaint and Amended Complaint a liberal
construction as this Court is required to do, there is simply no
basis for this Court to construe a plausible Section 1983 claim
against Nassau County.
Accordingly, Plaintiff’s Section 1983
claims against Nassau County are dismissed without prejudice.
C.
Claims against NCMC1
1
NCMC is one of the facilities managed by the Nassau Health Care
Corporation (“NHCC”), a public benefit corporation created under
New York law, see N.Y. Pub. Auth. Law §§ 3400-3420. Accordingly,
Plaintiff’s claims against NCMC are construed to be claims
against NHCC.
13
Similarly,
defendant
but
has
Plaintiff
not
continues
included
any
to
name
allegations
specified in the Court’s July 25, 2012.
NHCC
of
the
as
a
sort
Accordingly, Plaintiff
again fails to allege a plausible Section 1983 claim against NHCC.
Public benefit corporations, such as the NHCC, are municipal
entities for the purpose of Section 1983.
See, e.g. McGrath v.
Nassau Health Care Corp., 217 F. Supp. 2d 319, 330 (E.D.N.Y. 2002)
(“Public benefit corporations are governmental entities for Section
1983's purposes.”); Estes–El v. N.Y. Dep’t of Motor Vehicles Office
of Admin. Adjudication Traffic Violation Bureau, No. 95-CV-3454,
1997 WL 342481, at * 4 (S.D.N.Y. June 23, 1997) (holding that the
liability of a public benefit corporation under Section 1983 “is
governed by the principles set forth in Monell . . . and its
progeny.”); Sewell v. N.Y.C. Transit Auth., Nos. 90-CV-3734, 91-CV1274, 1992 WL 202418, at * 2 (E.D.N.Y. Feb. 10, 1992) (“The ‘policy
or custom’ requirement of Monell applies to public corporations as
well as to municipalities. . . .
Hence, in order to maintain a
cause of action under Section 1983 against [a public benefit
corporation],
the
plaintiff
must
plead
that
an
impermissible
‘policy or custom’ of that public benefit corporation denied him
his federal rights.”); see also Dangler v. N.Y.C. Off Track Betting
Corp., 193 F.3d 130, 142–43 (2d Cir. 1999) (applying Monell to
claims
against
“Accordingly,
to
the
OTB,
maintain
a
public
actions
14
benefit
brought
under
corporation).
Section
1983
against public benefit corporations, plaintiffs must show that
those corporations maintained a custom or policy that deprived them
of a constitutional right.”
McGrath, 917 F. Supp. 2d at 330; see
also Connick v. Thompson, --- U.S. ----, 131 S. Ct. 1350, 1359, 179
L. Ed. 2d 417 (“Plaintiffs who seek to impose liability on local
governments under Section 1983 must prove that ‘action pursuant to
official municipal policy’ caused their injury.” (quoting Monell,
436 U.S. at 658, 690–1; Roe v. City of Waterbury, 542 F.3d 31, 36
(2d Cir. 2008) (holding that in order to prevail on a Section 1983
claim against a municipal entity or public benefit corporation, a
plaintiff must show: “(1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation;
(4) damages; and (5) that an official policy of the municipality
[or
public
benefit
corporation]
caused
the
constitutional
injury.”).
Here, as is readily apparent, Plaintiff has not alleged
any “injury to a constitutionally protected right . . . that . . .
was caused by a policy or custom of the [NHCC] or by a[n] [NHCC]
official responsible for establishing final policy .’” Hartline v.
Gallo, 546 F.3d 95, 103 (2d Cir. 2008) (internal quotations and
citation omitted).
Accordingly, Plaintiff's claims against the
NHCC are dismissed without prejudice.
D.
Claims against Sergeant Miller, Capt. Ford
and Michael Sposato
Although Plaintiff names Sergeant Miller, Capt. Ford and
15
Michael
Sposato
as
defendants,
he
includes
no
substantive
allegations against any of them, nor does he even mention them in
the body of the Complaint or Amended Complaint.
Because “personal
involvement of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under § 1983,” Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d
Cir. 2004), Plaintiff has failed to allege a plausible Section 1983
claim against Sergeant Miller, Capt. Ford and Michael Sposato.
Indeed, “a complaint based on a violation under Section 1983 that
does not allege the personal involvement of a defendant fails as a
matter of law.”
Icangelo v. Judge Henry, et al., 09-CV-5137(SJF)
(ARL) (E.D.N.Y. Jan. 20, 2010) (citing Rosa R. Connelly, 889 F.2d
435, 437 (2d Cir. 1989); Johnson v. Barney, 360 F. Appx. 199, 201
(2d Cir. 2010)) (add’l citation omitted). Given the absence of any
allegations of conduct attributable to Sergeant Miller, Capt. Ford
and Michael Sposato, Plaintiff’s Section 1983 claims against them
are implausible as a matter of law and are thus dismissed without
prejudice.
E.
Claims against Armor and Officer Evans
Plaintiff
defendants.
also
names
Armor
and
Officer
Evans
as
Armor is a private company contracted to perform
medical services for inmates at the Nassau County Correctional
Center.
Cofield v. Armor Corr. Health, Inc., No. 12-CV-1394
(SJF)(ETB), 2012 WL 12222326, *2 (E.D.N.Y. Apr. 11, 2012).
16
A
private employer may be held liable under Section 1983 for the acts
of
its
employees
where
the
employee
acted
pursuant
to
the
employer's official policy, or where the private entity employer
was
jointly
engaged
with
state
officials
or
its
conduct
is
chargeable to the state, or where the employer authorized or
participated in the alleged constitutional deprivation.
Id.
(citing Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.
2002)).
In addition, “[p]rivate employers are not liable under §
1983 for the constitutional torts of their employees, unless the
plaintiff proves that ‘action pursuant to official . . . policy of
some nature caused a constitutional tort.’”
Rojas v. Alexander's
Dep’t Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990) (quoting
Monell, 436 U.S. at 691, 98 S. Ct. at 2036 (emphasis in original))
(internal citations omitted); see also White v. Moylan, 554 F.
Supp. 2d 263, 267–68 (D. Conn. 2008); Martin v. Lociccero, 917 F.
Supp. 178, 184 (W.D.N.Y. 1995).
Here, though thin, Plaintiff has alleged that he was
advised on several occasions that his alleged necessary medical
treatment was denied because it was too expensive and would not be
“covered” by Armor.
Such allegations, at this early junction
render plausible Plaintiff’s Section 1983 claim against Armor.
Similarly,
Plaintiff’s
deliberate
indifference
dubious, shall proceed against Officer Evans.
claims,
though
Affording the
Plaintiff’s claims a liberal construction, Plaintiff alleges that
17
Officer Evans did not follow the Jail’s procedures in seeking
proper medical treatment for Plaintiff following Plaintiff’s fall
on August 10, 2011.
Accordingly, the Clerk of the Court is
directed to issue Summonses for Armor and Officer Evans and to
forward copies of the Complaint, the Amended Complaint and this
Order, together with the Summonses, to the United States Marshal
Service for service upon Armor and Officer Evans forthwith.
F.
Claims against Dr. K, P.H. Smith, Mr. Carlos,
Ms. Peg and the John and Jane Doe Defendants
Though
Plaintiff
seeks
to
sue
the
above
individual
Defendants pursuant to Section 1983, he has not sufficiently
identified
them
such
that
the
United
States
Marshal
Service
(“USMS”) will not be able to effect service of the Summons,
Complaint and Amended Complaint on these individuals without more
information. The Second Circuit has held that district courts must
provide incarcerated pro se litigants with reasonable assistance in
investigating the identity of “John Doe” officers. See Valentin v.
Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam). Accordingly, the
Court hereby orders: (1) that the Clerk of the Court serve a copy
of the Complaint, the Amended Complaint and this Order on the
Nassau County Attorney; and (2) that the Nassau County Attorney’s
Office attempt to ascertain the full names of the individuals that
Plaintiff seeks to sue as described in the pleadings and provide
the address where each such Defendant can be served to the Court
and the Plaintiff within thirty (30) days of the date this Order is
18
served upon it.
Once the information is provided to the Court by
the Nassau County Attorney’s Office, Plaintiff’s Complaint shall be
deemed amended to reflect the full names of the “John and Jane Doe”
Defendants, as well as those named by Plaintiff as “Dr. K”, “P.H.
Smith”, “Mr. Carlos” and “Ms. Peg”, summonses shall be issued as to
those Defendants and the USMS shall serve those Defendants.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is granted, but the Complaint is sua
sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) in
part, as set forth above.
Plaintiff claims against the Jail, the
County, NHCC, Sergeant Miller, Capt. Ford and Sheriff Sposato are
dismissed without prejudice.
Plaintiff’s claims against Armor and
Officer Evans shall proceed and the Clerk of the Court is directed
to forward copies of the Summonses, the Complaint, the Amended
Complaint and this Order to the USMS for service upon Armor and
Officer Evans forthwith. Finally, no summonses shall issue at this
time for the Defendants identified by Plaintiff as “John Doe”,
“Jane Doe”, “Dr. K”, “P.H. Smith”, “Mr. Carlos” and “Ms. Peg”.
Rather, the Clerk of the Court is directed to serve a copy of the
Complaint, the Amended Complaint and this Order on the Nassau
County
Attorney.
The
Nassau
County
Attorney’s
Office’s
is
requested to attempt to ascertain the full names of the individuals
that Plaintiff seeks to sue as described in the pleadings and
19
provide the address(es) where each such Defendant can be served to
the Court and the Plaintiff within thirty (30) days of the date
this Order is served upon it.
Once the information is provided to
the Court by the Nassau County Attorney’s Office, Plaintiff’s
Complaint shall be deemed amended to reflect the full names of the
“John and Jane Doe” Defendants, as well as those named by Plaintiff
as “Dr. K”, “P.H. Smith”, “Mr. Carlos” and “Ms. Peg”, summonses
shall be issued as to those Defendants and the USMS shall serve
those Defendants.
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:
November
21 , 2012
Central Islip, New York
20
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