Hyman v. Nassau County Correctional Facility

Filing 8

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiffs application to proceed in forma pauperis is granted and the complaint is sua sponte dismissed for failure to state a claim upon which relief may be granted. 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. The Clerk of the Court is respectfully directed to close this case. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 1/15/2013. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------)(
RAYMOND HYMAN,
Plaintiff,

ORDER
12-CV-6094(SJF)(AKT)

-againstNASSAU COUNTY CORRECTIONAL FACILITY,
Defendant.

--------------------------------------------------------------)(
FEUERSTEIN, J.

I.

FILED
IN CLERK'S OFFICE
US DISTRICT COURTED N y

*

*
LONG t:LAND OFFICE

Introduction
Pending before the Court is another complaint from incarcerated pro se plaintiff Raymond

Hyman ("plaintiff') brought pursuant to 42 U.S.C. § 1983 ("section 1983"), accompanied by an
application to proceed in forma pauperis. By way ofbackground, on October 10,2012, plaintiff
filed a complaint assigned docket number 12-CV -5098 (the "October complaint") raising the same
claims as the present complaint.

By order dated November 9, 2012, the Court granted plaintiffs

in forma pauperis application and permitted plaintiff to file the October complaint without
prepayment of the filing fee. However, the Court sua sponte dismissed the October complaint
and afforded plaintiff an opportunity to file an amended complaint. Plaintiff was warned that his
failure to file an amended complaint within thirty (30) days from the date that the order was served
upon him would lead to the dismissal of his complaint with prejudice. Having not received an
amended complaint or any other communication from plaintiff concerning the October complaint
within the time allotted, the Court dismissed the October complaint with prejudice on January 3,
2013.
On December 6, 2012, plaintiff filed the present complaint, which was assigned docket

number 12-CV-6094. Plaintiff did not label it as an amended complaint or otherwise indicate
whether it was intended to satisfy the Court's order dated November 9, 2012. Indeed, plaintiff
left blank the portion of the complaint form that asks whether plaintiff has initiated other lawsuits
dealing with the same facts involved in the action or otherwise relating to his imprisonment.'
Although the dismissal of the October complaint pursuant to Federal Rule of Civil
Procedure 41 (b) is a bar to the present action, the Court has nonetheless reviewed the complaint in
light of plaintiffs prose status. The Court again finds that plaintiff has failed to allege a plausible
claim. Accordingly, for the reasons that follow, the plaintiffs complaint is sua sponte dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i) and (ii); 1915A(b)(l).
II.

The Complaint
Like the October complaint, plaintiffs brief, handwritten complaint, submitted on the

Court's section 1983 complaint form, alleges that he was arrested on February 15,2010 for
violating an order of protection. Compl. at 'If IV. Plaintiff claims that the "gang unit" came to
talk with plaintiff because he has a tattoo that reads "The Nation of the Gods & Earths, 5%." Id.
Plaintiff claims that he advised the officer from the gang unit that he is no longer affiliated with
"the Nation" and has not been so associated since 2000. Id. According to the complaint, plaintiff
learned that he was on "gang unit probation" because police paperwork from a prior incident noted
that plaintiff was a member of the "Bloods" gang. Id.
Plaintiff further claims that on June 27,2012, while in Bethlehem, Pennsylvania, he "was
arrested at gun point for a violation of probation." Plaintiff claims that he was "processed &

The Court notes that plaintiff also failed to allege that he filed another lawsuit on
September 10, 2012 against the Nassau County Correctional Facility, assigned docket number
12-CV-5099, in which he complains that he was "served spoiled chicken for lunch."
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given my paperwork" and saw that there was a notation on his papers that read: "Warning! Blood
affiliated. May be armed and dangerous, proceed with caution." Id. According to plaintiff, this
notation is a defamation of character and he seeks to recover fifty million dollars ($50,000,000).
Id. at
III.

ml IV .A., V.
Discussion
Application to Proceed In Forma Pauperis

A.

Upon review of plaintiffs declaration in support of his application to proceed in forma

pauperis, the Court finds that plaintiffs financial status qualifies him to commence this action
without prepayment ofthe filing fees.

See 28 U.S.C. § 1915(a)(l).

Accordingly, plaintiffs

request for permission to proceed in forma pauperis is granted.
B.

The Prison Litigation Reform Act

The Prison Litigation Reform Act requires a district court to review a complaint in which
a prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity and to dismiss the complaint if the action is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief against a defendant who is immune
from such relief.
Cir. 2007).

28 U.S.C. §§ 1915A, 1915(e)(2)(B); Abbas v. Dixon, 480 F.3d 636,639 (2d

The Court is required to dismiss the action as soon as it makes such a

determination.

See 28 U.S.C. § 1915A.

It is axiomatic that the Court is required to read a prose plaintiff's complaint liberally,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007), and to construe it '"to raise the strongest
arguments that [it] suggest[s],"' Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting
Harris v.City ofN.Y., 607 F.3d 18,24 (2d Cir. 2010) (alterations in original)).

Moreover, the

Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the
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complaint."

Kiobel v. Royal DutchPetroleum Co., 621 F.3d Ill, 124 (2d Cir. 2010).

A

complaint must plead sufficient facts "to state a claim to relief that is plausible on its face."
Bell At!. Com. v. Twombly, 550 U.S. 544, 570 (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."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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).
C.

Section 1983

Section 1983 provides as follows:
Every 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 ....
To state a cognizable section 1983 claim, a plaintiff must allege that the challenged conduct was
"conunitted by a person acting under color of state law'' and that the 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) (internal quotation marks omitted).
Section 1983 does not create any independent substantive rights 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).
In addition, in order to state a claim for relief under section 1983, the plaintiff must allege
the personal involvement of a defendant in the purported constitutional deprivation. Farid v.
Ellen, 593 F.3d 233, 249 (2d Cir. 201 0). Personal involvement may be established by evidence of

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direct participation by a supervisor in the challenged conduct, or by evidence of a supervisory
official's "(!)failure to take corrective action after learning of a subordinate's unlawful conduct,
(2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in
supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of
others by failing to act on information regarding the unlawful conduct of subordinates." Havut v.
State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003). "An individual cannot be held liable for
damages under Section 1983 'merely because he held a high position of authority' .... " Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). 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 (2d Cir. 2010) (summary order).
D.

Immunity From Suit

"[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, e.g., Lukes v. Nassau Cnty. Jail, No. 12-CV-1139(SJF)(AKT), 2012 WL
1965663, at *2 (E.D.N.Y. May 29, 2012) (dismissing claims against the Nassau County Jail
because it is an "administrative arm of Nassau County, without a legal identity separate and apart
from the County"); Melendez v. Nassau Cnty., No. 10-CV-2516 (SJF)(WDW), 2010 WL
3748743, at *5 (E.D.N.Y. Sept. 17, 201 0) (dismissing claims against Nassau County Sheriff's
Department because it lacks the capacity to be sued).
Accordingly, plaintiffs claim against the Nassau County Correctional Center is dismissed
in its entirety with prejudice. However, given plaintiffs prose status, the Court will construe his
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;

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claim to be asserted against Nassau County.
E.

Claims Against Nassau County
It is well-established that a municipality or municipal entity, such as Nassau County,

cannot be held liable under section 1983 on a respondeat superior theory. Monell v. Dep't of Soc.
Servs. ofCitv ofN.Y., 436 U.S. 658,691 (1978). To prevail on a section 1983 claim against a
municipality, a plaintiff must "prove that action pursuant to official municipal policy caused the
alleged constitutional injury." Cash v. Cnty. of Erie, 654 F.3d 324,333 (2d Cir. 2011), cert. denied,
132 S. Ct. 1741, 182 L. Ed.2d 528 (20 12) (internal quotation marks omitted). "A municipal
policy may be pronounced or tacit and reflected in either action or inaction." Id. at 334.
"Official municipal policy includes the decisions of a goverrunent's lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the force
of law." Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). Municipal liability may also lie
where "a policymaking official exhibits deliberate indifference to constitutional deprivations
caused by subordinates, such that the official's inaction constitutes a deliberate choice." Cash,
654 F.3d at 334 (internal quotation marks omitted).
Even liberally construing the complaint, plaintiffs allegations are insufficient to state a
cause of action pursuant to section 1983 against Nassau County. See, e.g., White v. St. Joseph's
Hosp., 369 F. App'x 225,226 (2d Cir. 2010) (affirming sua sponte dismissal of section 1983 claim
for the plaintiffs failure "to allege that any of the allegedly unconstitutional actions were taken
pursuant to an official policy or custom, as is required to state a § 1983 claim against a
municipality."). Plaintiff fails to allege: (I) the existence of a formal policy which caused the
alleged injury; (2) actions taken or decisions made by policymaking officials which caused the
alleged injury; (3) a practice so persistent and widespread as to practically have the force of law
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which caused the alleged injury; or (4) deliberate indifference on behalf ofpolicymakers to the
rights of those who come in contact with their employees.
Accordingly, plaintiffs claim, construed to be against Nassau County, is dismissed. The
Court has considered whether to afford plaintiff a third opportunity to properly allege a section
1983 claim against a proper defendant. Given that amendment would not cure the substantive
defects of the complaint as set forth above, leave to amend the complaint is denied, and plaintiff's
complaint is dismissed with prejudice. The Clerk of the Court is respectfully directed to close this
case.
IV. Conclusion
For the foregoing reasons, plaintiffs application to proceed in forma pauperis is granted
and the complaint is sua sponte dismissed for failure to state a claim upon which relief may be
granted. 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 (1962). The Clerk of the
Court is respectfully directed to close this case.

SO ORDERED.

s/ Sandra J. Feuerstein
liandra J. FelY;stein
United States District Judge

Dated:

January /5,2013
Central Islip, New York

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