Trahan v. Suffolk County Correctional Facility et al
Filing
10
ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is granted, but the Complaint is sua sponte d ismissed as against the Suffolk County Correctional Facility and Sheriff DeMarco pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b). Party Vincent Demarco and Suffolk County Correctional Facility terminated. The claims against Defendants Capo zzola, Horl and Garzadas shall proceed and the Clerk of the Court is directed to forward copies of the Summonses, the Complaint and this Order to the United States Marshals Service for service upon Defendants Capozzola, Horl and Garzadas forthwith. T he application for the appointment of pro bono counsel is denied with leave to renew when this case is ready for trial, if so warranted at that time. 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 11/26/2012. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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VILIMAA TRAHAN,
FILED
CLERK
11/26/2012 2:29 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Plaintiff,
ORDER
12-CV-4353(JS)(ARL)
-againstSUFFOLK COUNTY CORRECTIONAL FACILITY,
C.O. PHIL CAPOZZOLA, #1311, SGT. HORL,
#5220, SHERIFF VINCENT DEMARCO,
C.O. CHRISTOPHER GARZADAS, #1170,
Defendants.
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APPEARANCES:
For Plaintiff:
Vilimaa Trahan, Pro Se
651405
Suffolk County Correctional Facility
110 Center Drive
Riverhead, New York 11901
For Defendants:
No Appearances
SEYBERT, District Judge:
On August 27, 2012, incarcerated pro se plaintiff Vilimaa
Trahan (“Plaintiff”) filed a Complaint in this Court pursuant to 42
U.S.C. § 1983 against the defendants, Suffolk County Correctional
Facility, C.O. Phil Capozzola, #1311, Sgt. Horl, #5220, Sheriff
Vincent DeMarco and C.O. Christopher Garzadas, #1170 (together, the
“Defendants”) accompanied by an application to proceed in forma
pauperis
and an application for the appointment of pro
bono
counsel.1
1
The Court notes that Plaintiff did not file the required
Prisoner Authorization form at the time he filed the Complaint.
By letter dated August 30, 2012, Plaintiff was advised that he
needed to complete and return a Prisoner Authorization form if
he wanted to proceed with his case. Plaintiff did so on
September 7, 2012.
Upon review of Plaintiff’s declaration in support of the
application, the Court finds that Plaintiff’s financial status
qualifies him to file this action without prepayment of the filing
fee.
Accordingly, the application to proceed in forma pauperis is
granted.
However, for the reasons that follow, the Complaint is
sua sponte dismissed against Sheriff DeMarco and the Suffolk County
Correctional Facility pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A.
The application for the appointment of pro bono counsel is
denied at this time.
BACKGROUND
Plaintiff’s brief handwritten Complaint submitted on the
Court’s civil rights complaint form alleges that he was beaten by
C.O. Phil Capozzola and unidentified “S.E.R.T. Officers” on May 9,
2012 and on July 17, 2012.
(Compl. at ¶ IV.)
Plaintiff claims
that Sgt. Horl participated in the July 17th beating.
(Id.)
Plaintiff also claims that, on August 18, 2012, C.O. Christopher
Garzagas “used excessive force” in that he “punch[ed] me 10 times
in my face after I was sprayed with pepper spray. . . .”
(Id.)
As a result of these assaults, Plaintiff claims to
suffer migraine headaches, has an injury to his eye, has a sprained
left leg and damaged nerves in his wrists, as well as abrasions and
a swollen face.
Plaintiff describes that he “went to Peconic Bay
Outside Hospital” following the May and July beatings where he was
treated.
According to the Plaintiff, he was treated by “medical”
2
for injuries he allegedly sustained from the August beating.
(Compl. at ¶ IV. A. and attachments thereto.)
Plaintiff seeks to
recover two (2) million dollars in compensatory and punitive
damages. (Compl. at ¶ V).
DISCUSSION
I.
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his
application to proceed in forma pauperis, the Court determines that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff’s request to proceed in forma pauperis is
granted.
II.
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 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); 1915A(b).
The Court is required to dismiss the action as soon as it makes
such a determination.
See Id.
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally.
Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).
Moreover, at the pleadings stage of the
3
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, 123 (2d Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949–50, 173 L.
Ed. 2d 868 (2009).
However, 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
omitted).
alleged.”
Iqbal,
129
S.
Ct.
at
1949
(citations
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, 127 S. Ct. at 1955).
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. Cnty. of
Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 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.
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. Appx. 199 (2d Cir. Jan. 12, 2010).
With these
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standards in mind, the Court considers the Plaintiff’s claims.
A.
Claims Against Sheriff DeMarco
Although Plaintiff names Sheriff DeMarco as a defendant,
Plaintiff does not include any allegations of conduct attributable
to him of them and, in fact, he is not even mentioned in the body
of the Complaint.
Thus, it appears Plaintiff seeks to hold this
Defendant liable solely because of the supervisory positions 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 5.
Similarly, 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 at 237; 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 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)).
A supervisor
cannot be liable for damage under Section 1983 solely by virtue of
being
a
supervisor
because
liability under Section 1983.
there
is
no
respondeat
superior
Richardson v. Goord, 347 F.3d 431,
435 (2d Cir. 2003).
Here, Plaintiff's Complaint does not include any factual
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allegations sufficient to demonstrate any personal involvement by
Defendant DeMarco.
Accordingly, the Section 1983 claims asserted
against his are not plausible and are dismissed pursuant to 28
U.S.C. ¶¶ 1915(e)(2)(B) and 1915A.
B.
Claims Against the Suffolk County Correctional Facility
Though Plaintiff names the Suffolk County Correctional
Facility as a defendant, it does not have an independent legal
identity apart from Suffolk County and, thus, lacks the legal
capacity to be sued.
“[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 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).
Here, because the Suffolk County Correctional Facility is
an administrative arm of Suffolk County, without an independent
legal identity, it
Plaintiff’s
lacks the capacity to be sued.
Section
1983
claim
against
the
Accordingly,
Suffolk
County
Correctional Facility is not plausible and is dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
C.
Claims Against C.O. Capozzola, Sgt. Horl and
C.O. Garzadas
Plaintiff’s
Capozzola,
Sgt.
Horl
excessive
and
C.O.
7
force
Garzadas
claims
shall
against
proceed.
C.O.
In
accordance with the Second Circuit’s guidance that “‘sua sponte
dismissal of pro se prisoner petitions which contain nonfrivolous
claims without requiring service upon respondents or granting leave
to amend is disfavored by this Court’” McEachin v. McGuinnis, 357
F.3d 197, 200-01 (2d Cir. 2004) (quoting Moorish Sci. Temple of Am.
Inc. v. Smith, 693 F. 2d 987, 990 (2d Cir. 1982) (citations
omitted)), the Court declines to dismiss the excessive force claims
against these Defendants at this early stage in the proceedings.
Recognizing that the incarcerated pro se Plaintiff has “limited
legal knowledge and resources . . . which may hamper [his] ability
to
articulate
potentially
valid
claims
in
legally
cognizable
language”, McEachin, 357 F.3d at 201, the Court is of the mind that
sua sponte dismissal is unwarranted here prior to service of
process.
See McEachin, 357 F.3d at 200, citing Benitez v. Wolff,
907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam) (“Sua sponte
dismissal of a pro se complaint prior to service of process is a
draconian device, which is warranted only when the complaint lacks
an arguable basis either in law or fact.”).
Accordingly, the Clerk of the Clerk of the Court shall
forward copies of the Summonses, the Complaint, and this Order to
the United States Marshals Service for service upon Defendants
Capozzola, Horl and Garzadas forthwith.
IV.
The Application for the Appointment of Pro Bono Counsel
Unlike criminal defendants, civil litigants do not have
a constitutional right to the appointment of counsel.
However,
pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an
8
attorney to represent any person unable to afford counsel.”
In
deciding a motion for appointment of counsel, “the district judge
should first determine whether the indigent’s position seems likely
to be of substance.”
Hodge v. Police Officers, 802 F.2d 58, 61 (2d
Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596, 116 L. Ed.
2d 620 (1991).
A position is likely to be of substance if it
appears to the court that the plaintiff “appears to have some
chance of success . . . .”
Hodge, 802 F.2d at 61.
Where a
plaintiff satisfies this threshold requirement, the Second Circuit
instructs that
the court should then consider the indigent's
ability to investigate the crucial facts,
whether conflicting evidence implicating the
need for cross-examination will be the major
proof presented to the fact finder, the
indigent's ability to present the case, the
complexity of the legal issues and any special
reason in that case why appointment of counsel
would be more likely to lead to a just
determination.
Hodge, 802 F.2d at 61-62.
These factors are not restrictive and
“[e]ach case must be decided on its own facts.”
Here,
Plaintiff
alleges
that
he
was
Id. at 61.
beaten
by
the
individual Defendants on three occasions, in violation of his right
to be free from the use excessive force pursuant to 42 U.S.C. §
1983.
Notwithstanding the requirement that pleadings drafted by a
pro se litigant, such as Plaintiff, are to be construed liberally
and interpreted to raise the strongest arguments they suggest, see
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court, upon
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careful review of the Complaint and the facts presented therein and
in light of the factors required by law as discussed above, finds
that the appointment of counsel is not warranted at this time.
Even assuming that Hodge’s threshold requirement is satisfied, the
record reflects that the legal issues presented are not unduly
complex and that Plaintiff can adequately prosecute his claim pro
se.
Based on this review, Plaintiff’s motion for appointment of
pro bono counsel is denied without prejudice and with leave to
renew when the case is ready for trial, if warranted.
It is
Plaintiff’s responsibility to retain an attorney or press forward
with this lawsuit pro se.
See 28 U.S.C. § 1654.
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
Suffolk
County
Correctional
Facility and Sheriff DeMarco pursuant to 28 U.S.C. §§ 1915(e)(2),
1915A(b).
The claims against Defendants Capozzola, Horl and
Garzadas shall proceed and the Clerk of the Court is directed to
forward copies of the Summonses, the Complaint and this Order to
the United States Marshals Service for service upon Defendants
Capozzola, Horl and Garzadas forthwith.
The application for the
appointment of pro bono counsel is denied with leave to renew when
this case is ready for trial, if so warranted at that time.
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:
November
26 , 2012
Central Islip, New York
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