Jandres v. Nassau County Medical Center et al
Filing
6
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 pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) unless Plaintiff files an Amended Complaint alleging a viable Section 1983 claim against a proper defendant as set forth above within thirty (30) days from the date that this Order is served upon him. If Plaintiff fails to timely file an Amended Complaint, the Complaint shall be dismissed with prejudice, judgment shall enter, and the case will be closed. 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 7/25/12. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
WILLIAM JANDRES,
Plaintiff,
ORDER
12-CV-3132(JS)(GRB)
-againstNASSAU COUNTY MEDICAL CENTER,
NASSAU COUNTY SHERIFF’S DEPT.,
NASSAU COUNTY CORRECTIONAL
FACILITY, ARMOR CORRECTIONAL
HEALTH INC.,
Defendants.
-----------------------------------X
APPEARANCES:
For Plaintiff:
William Jandres, Pro Se
11002521
Nassau County Correctional Center
100 Carman Ave.
East Meadow, NY 11554
For Defendants:
No Appearances
SEYBERT, District Judge:
On June 21, 2012, pro se plaintiff William Jandres
(“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. § 1983
alleging the violation of his civil rights by the defendants, the
Nassau County Medical Center (“NCMC”), the Nassau County Sheriff’s
Dep’t. (the “Sheriff’s Department”), the Nassau County Correctional
Facility
(the
“Jail”),
and
Armor
Correctional
Health,
Inc.
(“Armor”) (collectively, the “Defendants”), accompanied by an
application to proceed in forma pauperis.
Upon review of the
Plaintiff’s declaration in support of his application to proceed in
forma pauperis, the Court finds that Plaintiff’s financial status
qualifies him to commence this action without prepayment of the
$350.00 filing fee.
28 U.S.C. §§ 1914(a); 1915(a)(1).
Accordingly, Plaintiff’s application to proceed in forma
pauperis is GRANTED. However, for the reasons set forth below, the
Complaint
is
sua
sponte
dismissed
1915(e)(2)(B)
and
1915A(b)
unless
pursuant
Plaintiff
to
28
files
U.S.C.
an
§§
Amended
Complaint as set forth below.
BACKGROUND
Plaintiff’s brief, handwritten Complaint, submitted on
the
Court’s
Section
1983
complaint
form,
alleges
that,
on
August 10, 2011, Plaintiff “slipped and fell on the wet floor at
E2/AB Hallway Housing Area” and that there were “no wet floor signs
out to warn anybody of the dangers ahead.”
Compl. at ¶ IV.
According to the Complaint, Plaintiff fell “in front of Corrections
Officer Mr. Evans Badge # 210,” who wrote up an “injury and/or
incident
report.”
Id.
Plaintiff
claims
to
have
sustained
“numerous injuries” to his “back, neck, left sholder [sic], and
right knee.”
Although Plaintiff alleges that “medical failed [to
provide] adequate medical treatment,” he does not allege that he
requested such treatment.
Rather, Plaintiff has annexed to his
Complaint a series of “Sick Call Request” forms signed by Plaintiff
and allegedly submitted between August 10, 2011 and June 10, 2012,
all requesting medical treatment for his claimed injuries allegedly
2
sustained on August 10, 2011.1
For example, the first such form,
dated August 10, 2011, states that Plaintiff “fell in the hallway
. . . [and] injured my wrist, shoulder & back, as well as hit my
head.”
Accordingly, Plaintiff states that he “feels it would be
appropriate to receive exrays [sic] &, if necessary, MRI(s).”
See
Sick Call Request Form, dated August 10, 2011, annexed to the
Complaint as page 4.
The next form, dated August 19, 2011,
requests only a “medication renewal - need something better. Still
having back pain - pins & needles.
From the fall that happened on 8/10.”
Neck & Leg & shoulder also.
See Sick Call Request Form,
dated August 19, 2011, annexed to the Complaint as page 5.
By Sick
Call Request Form dated August 26, 2011, Plaintiff asked “can you
please help me again since the 10th that I had the accident I have
been in pain & it’s getting worse.”
See Sick Call Request Form,
dated August 26, 2011, annexed to the Complaint as page 6.
Apparently, on August 27, 2011, Plaintiff was brought to “medical”
but was not seen because, by Sick Call Request dated August 29,
2011, Plaintiff states “you called my down to medical on 8-27-11 on
Saturday but I was sent back without being seen.
help me?
I have back, shoulder, & leg pain.
the hall way on 8/10/2011.
Can you please
From when I fell in
See Sick Call Request Form, dated
1
Plaintiff has also included a Sick Call Request form, dated
November 27, 2011, wherein he complains only of a toothache. See
Sick Call Request Form, dated November 27, 2011, annexed to the
Complaint as page 17.
3
August 29, 2011, annexed to the Complaint as page 7.
By Sick Call
Request dated September 1, 2011, Plaintiff stated “I still need to
see a doctor that can help me.
had on 8/10/2011.
I’m still in pain from that fall I
My shoulder, neck and rt knee still hurt.
don’t know what to do except keep writing.
Please help.”
Call
2011,
Request
Form,
dated
Complaint as page 8.
September
1,
annexed
I
See Sick
to
the
The Sick Call Forms submitted by Plaintiff
continue to request medical treatment for his claimed injuries
allegedly resulting from his August 10, 2011 fall.
On October 8,
2011, plaintiff acknowledges that he was seen by a “nurse” on
September 22, 2011, but continues to request medical treatment from
a doctor.
See Sick Call Request Form, dated October 8, 2011,
annexed to the Complaint as page 12.
On October 17, 2011,
Plaintiff again requests that a doctor diagnose his injuries.
See
Sick Call Request Form, dated October 17, 2011, annexed to the
Complaint as page 13.
On November 1, 2011, Plaintiff requested
that his prescription for “Flexeril” be renewed because it “is
helping me a little bit.” Plaintiff also again requests that he be
seen by a doctor.
See Sick Call Request Form, dated November 1,
2011, annexed to the Complaint as page 14.
On November 13, 2011,
Plaintiff yet again asks for medical treatment, including that an
MRI be ordered to diagnose his back, shoulder and knee pain.
See
Sick Call Request Form, dated November 13, 2011, annexed to the
Complaint as page 5.
At some point Plaintiff was apparently
4
examined by two doctors, namely Drs. Lora and Nova, but Plaintiff
claims that these doctors are “not doing anything to help me” and,
accordingly, Plaintiff requests that he be seen by a doctor other
than Lora and Nova.
The next relevant form, dated December 11,
2011, reflects that Plaintiff must have been examined and x-rayed
because he requests the results of the x-ray and requests an MRI if
See Sick Call
the x-ray does not show anything wrong with him.
Request Form, dated December 11, 2011, annexed to the Complaint as
page 18.
neck,
On March 20, 2012, Plaintiff continued to complain of
left
shoulder,
right
knee
and
lower
back
acknowledges that he was seen by the “orthopedic.”
pain
and
Plaintiff
complains, however, that the orthopedic doctor told him to return
in two weeks and that it has now been five weeks since he was first
seen by the orthopedic doctor.
See Sick Call Request Form, dated
March 20, 2012, annexed to the Complaint as page 23.
On June 6 and
June 12, 2012, Plaintiff attributes his injuries to a “car accident
and/or the incident” - the August 10, 2011 fall on the wet floor.
See Sick Call Request Forms, dated June 6 and 12, 2012, annexed to
the Complaint as pages 26 and 27.
Plaintiff’s Complaint describes that his neck, back,
right knee and left shoulder have “sharp, chronic pain” and that he
experiences “numbness and tingling” as well as a loss of feeling in
his hand, causing Plaintiff to drop things.
a
result,
Plaintiff
seeks
“proper
5
Compl. at ¶ IV.A.
medical
treatment,
As
proper
diagnoses of my injury’s [sic] and proper prescribed medications”
as well as monetary compensation in total sum of three hundred and
twenty million dollars ($320,000,000.00).
DISCUSSION
I.
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the $350.00 filing fee.
1914(a); 1915(a)(1).
See 28 U.S.C. §§
Accordingly, Plaintiff’s application to
proceed in forma pauperis is GRANTED.
II.
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
6
Plaintiff’s
pro
se
Complaint
liberally,
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
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.’”
7
Id. (quoting Twombly, 550 U.S.
at 555).
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 Section 1983 claim, a plaintiff must
allege (1) that the challenged conduct was “committed by a person
action 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.
Sheriff’s Department and Jail
“[U]nder
New
York
law,
departments
that
are
merely
administrative arms of a municipality do not have a legal identity
separate and apart from the municipality and therefore, cannot sue
8
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
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).
Here, both
the Sheriff’s Department and the Jail are administrative arms of
Nassau County, without independent legal identities.
Accordingly,
they lack the capacity to be sued and thus Plaintiff’s claims
against both the Sheriff’s Department and the Jail are DISMISSED.
To assert a Section 1983 claim against a municipal entity
such as the sheriff’s department or county jail, the proper
defendant is the municipality itself because there is no respondeat
superior liability under Section 1983.
Monell v. Department of
Social Services of City of New York, 436 U.S. 658, 691, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978).
To prevail on a Section 1983 claim
against a municipality, a plaintiff must 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.’”
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));
9
see also Monell, 436 U.S. at 690-901, 98 S. Ct. 2018.
“Local
governing bodies . . . may be sued for constitutional deprivations
pursuant to governmental ‘custom’ even though such a custom has not
received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91 (citations omitted).
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
Complaint
is
wholly
devoid
of
allegations to support a plausible municipal liability claim.
In
an abundance of caution and given Plaintiff’s pro se status, he is
granted
leave
to
file
an
Amended
Complaint
against
the
municipality, Nassau County, in accordance with the requirements
set forth above.
Any Amended Complaint shall be filed within
10
thirty (30) days from the date that this Order is served upon the
Plaintiff.
B.
Armor
Plaintiff names Armor as a defendant, but does not
include any specific allegations against it.
Armor is a private
company contracted to perform medical services for inmates at the
Nassau County Correctional Center.
Cofield v. Armor Correctional
Health, Inc., No. 12-CV-1394 (SJF)(ETB), 2012 WL 12222326, *2
(E.D.N.Y. Apr. 11, 2012).
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
deprivation.
or
participated
Id.
in
the
alleged
constitutional
(citing Ciambriello v. County 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 Dept. 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).
11
Here, Plaintiff has not alleged any facts that could make
Armor liable for the actions of its employees.
Accordingly,
Plaintiff’s claims against Armor are dismissed with prejudice
unless he files an Amended Complaint alleging a constitutional
violation within thirty (30) days from the date that this Order is
served upon him. Plaintiff shall include facts concerning the acts
or omissions of the employee[s] of this Defendant.
C.
NCMC2
Public
benefit
corporations,
such
as
the
municipal entities for the purpose of Section 1983.
NHCC,
are
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. New York State
Department of Motor Vehicles Office of Administrative 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.
New York City Transit Authority, Nos. 90-CV-3734, 91-CV-1274, 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
2
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.
12
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. New York City Off Track Betting
Corporation, 193 F.3d 130, 142–43 (2d Cir. 1999) (applying Monell
to
claims
against
“Accordingly,
to
the
OTB,
maintain
a
public
actions
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
13
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 with prejudice unless Plaintiff files an Amended
Complaint stating a plausible Monell claim against the NHCC within
thirty (30) days from the date this Order is served upon him.
D.
Negligence Claim
Apart from Plaintiff’s Section 1983 claims purporting to
allege the deprivation of his Eighth Amendment right to adequate
medical
treatment,
affording
the
pro
se
Complaint
a
liberal
construction, it appears that Plaintiff also seeks to assert a
constitutional claim arising from the alleged dangerous condition
that allegedly caused him to fall.
Such claim does not implicate
a constitutional deprivation. See, e.g., Carr v. Canty, No. 10-CV3829 (BSJ)(KNF), 2011 WL 309667, *2 (S.D.N.Y. Jan. 19, 2011)
(“‘[C]ourts have held that allegations of wet conditions leading to
a slip-and-fall will not support a Section 1983 claim even where .
. . the plaintiff [] alleges that the individual defendants had
notice of the wet condition but failed to address it.’”), quoting
Edwards v. City of New York, No. 08-CV-5787, 2009 WL 2596595, at *3
(S.D.N.Y. Aug. 24, 2009); Jennings v. Horn, No. 05-CV-9435, 2007 WL
2265574, at *5 (S.D.N.Y. Aug. 7, 2007) (“[S]lippery prison floors,
14
at best, pose a claim of negligence, which is not actionable under
the United States Constitution.”); see also Powers v. Gipson, No.
04-CV-6883L(P),
2004
WL
2123490
(W.D.N.Y.
2004)
(sua
sponte
dismissing in forma pauperis complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B)
and
1915A,
explaining
that
“[t]he
claim
that
defendants were negligent in failing to clean up the water that
caused plaintiff to slip, without more, fails to provide him with
a basis for a federal claim, since mere negligence on the part of
state officials is not actionable under § 1983); Nauden v. Maha,
No. 04-CV-0171SC, 2004 WL 1145916, *1 (W.D.N.Y. Apr. 7, 2004) (sua
sponte dismissing in forma pauperis complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A because “[i]t is abundantly clear to the
Court that plaintiff is alleging nothing more than a claim of
negligence against the defendants for their alleged creation of a
dangerous condition which caused him to slip and fall.”).
Here, Plaintiff alleges nothing more than that he slipped
and fell on a wet floor, and that there were “no wet floor signs
out to warn anybody of the dangers ahead.”
best,
Plaintiff
has
alleged
constitutional deprivation.
a
negligence
Compl. at ¶ IV.
claim,
and
At
not
a
Daniels v. Williams, 474 U.S. 327,
330-31, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (negligence claims
do
not
rise
to
the
level
of
a
constitutional
violation).
Accordingly, even if asserted against a proper defendant, the Court
declines to assert supplemental jurisdiction over this state law
15
claim and Plaintiff may pursue such claim in state court.
See
Sylla v. City of New York, No. 04-CV-5692 (ILG), 2005 WL 3336460,
*8 (E.D.N.Y. Dec. 8, 2005) (citing Castellano v. Bd. of Trustees,
937 F.2d 752, 758 (2d Cir. 1991) (“[I]f the federal claims are
dismissed
before
trial,
even
though
not
insubstantial
in
a
jurisdictional sense, the state claims should be dismissed as
well.”)); see also Nauden, 2004 WL 1145916, at *1 (“Plaintiff’s
avenue for relief for his claims of negligence in state court, not
a claim in federal court under 42 U.S.C. § 1983").
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)
unless Plaintiff files an Amended Complaint alleging a viable
Section 1983 claim against a proper defendant as set forth above
within thirty (30) days from the date that this Order is served
upon him.
If Plaintiff fails to timely file an Amended Complaint,
the Complaint shall be dismissed with prejudice, judgment shall
enter, and the case will be closed.
The Amended Complaint must be
labeled “Amended Complaint” and must bear docket number 12-CV-3132
(JS)(GRB).
Plaintiff is advised that an Amended Complaint does not
simply add to the original Complaint. Once an Amended Complaint is
filed, it completely replaces the original.
16
Therefore, it is
important for Plaintiff to include all necessary information that
was in the original Complaint in the Amended Complaint.
The Court
will screen any timely filed Amended Complaint pursuant to 28
U.S.C. §§ 1915, 1915A.
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
25 , 2012
Central Islip, New York
17
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