Burton v. Nassau County Sheriff Dept. et al

Filing 6

MEMORANDUM AND ORDER re: 2 Motion for Leave to Proceed in forma pauperis is GRANTED, but the Complaint is sua sponte DISMISSED without prejudice unless Plaintiff files an Amended Complaint in accordance with this Order within 30 days from the date this Order is served upon him. The Court certifies that any appeal from this Order would not be taken in good faith. Ordered by Judge Joanna Seybert on 5/1/2013. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DAMIEN T. BURTON,
Plaintiff,

MEMORANDUM & ORDER
13-CV-1119(JS)(WDW)

-againstNASSAU COUNTY SHERIFF DEPT.,
MICHAEL SPOSATO, Individually
and In His Official Capacity
as Sheriff of Nassau County,

Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff
Damien T. Burton, pro se
12003792
Nassau County Correctional Center
100 Carman Avenue
East Meadow, New York 11554
For Defendants

No Appearances

SEYBERT, District Judge:
Before the Court is the Complaint of incarcerated pro se
plaintiff Damien T. Burton (“Plaintiff”) against the Nassau County
Sheriff’s Department and Nassau County Sheriff Michael Sposato
(“Sposato”) (together, “Defendants”) filed pursuant to 42 U.S.C. §
1983, accompanied by an application to proceed in forma pauperis.
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 pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)(ii); 1915A(b) and with leave to file an Amended Complaint.

BACKGROUND
Plaintiff’s brief, handwritten Complaint submitted on the
Court’s Section 1983 complaint form alleges the following in its
entirety:1
In May 2012 I was bit by a spider for which I
took medication for eventually the medication
caused chest pains and light dizziness which I
complained. I was given nothing for that
Alment. In June 2012 I grieved about mouse
droppings inside my cereal.
In Aug 2012 I
grieved about not eating and medication the
officers assigned to E1B refused to feed us
lunch and didn’t open the entire top teir
because there was a complaint about the crab
salad smelling bad so the inmates at the
bottom teir refused to eat and never let the
other 26 inmates out on the top to make a
choice to eat or not nor did the officers
compensate with another meal sandwiches Etc. A
denial to eat is at the discretion of the
inmate if he refuses not of the officers.
Also Roaches inside the food cart this has
been the norm for 10 months April 28, 2012,
Feb 20, 2012.
Compl.

at

¶

IV.

Plaintiff

also

alleges

that

he

“recieved

medication for the spider bite. I also recieve [sic] aspirin now to
thin my blood to lower my chances of a heart attack due to the
medication I recieved [sic] from the jail.”

Compl. at ¶ IV.A.

For relief, Plaintiff seeks, inter alia, unspecified monetary
damages as well as “someone from the United States District Court
EDNY to come see me regarding these problems here are Nassau County

1

The Court has reproduced the Plaintiff’s Complaint exactly as
it appears in the original and has not corrected or noted any
spelling, punctuation, or grammatical errors.
2

Jail.”

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

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
3

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 alleged.”

Iqbal, 556 U.S at 678, 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.’”
III.

Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1955).
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
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
4

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. App’x 199 (2d Cir. Jan. 12, 2010).

With these

standards in mind, the Court considers the Plaintiff’s claims.
A.

Defendant Sheriff Sposato
Although Plaintiff names Sheriff Sposato as a Defendant,
5

there are no factual allegations concerning him nor is he even
mentioned in the body of the Complaint. Thus, it appears Plaintiff
seeks

to

hold

this

Defendant

supervisory position he holds.

liable

solely

because

of

the

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 56.

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 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
there is no respondeat 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 by
Defendant Sposato.

Accordingly, the Section 1983 claims asserted

against him are not plausible and are dismissed without prejudice.

6

B.

Nassau County Sheriff’s Department
Though Plaintiff names the Nassau County Sheriff’s

Department as a Defendant, it does not have an independent legal
identity apart from Nassau 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 Lukes v. Nassau Cnty.
Jail, 12-CV-1139(SJF)(AKT), 2012 WL 1965663, *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.”);

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, because the Nassau County Sheriff’s

Department is

an administrative arm of Nassau County, without an independent
legal identity, it lacks the capacity to be sued.

Accordingly,

Plaintiff’s Section 1983 claim against the Nassau County Sheriff’s
Department is not plausible and is dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A.

However, given Plaintiff’s pro se
7

status, the Court liberally construes his Complaint and considers
whether Plaintiff has alleged a plausible Section 1983 claim
against Nassau County.
C.

Claim Against the County of Nassau
It is well-established that a municipality such as Nassau

County cannot be held liable under § 1983 on a respondeat superior
theory.

See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436

U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Roe v. City
of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).

To prevail on a

Section 1983 claim against a municipality, a plaintiff must show
“that ‘action pursuant to official municipal policy’ caused the
alleged constitutional injury.”

Cash v. County of Erie, 654 F.3d

324, 333 (2d Cir. 2011), cert. denied, ––– U.S. ––––, 132 S. Ct.
1741, 182 L. Ed. 2d 528 (2012) (quoting Connick v. Thompson, –––
U.S. ––––, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)); see
also Monell, 436 U.S. at 690–91, 98 S. Ct. 2018, 56 L. Ed. 2d 611.
“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 690–691 (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, see
8

Connick, 131 S. Ct. at 1359; (2) actions taken or decisions made by
municipal

policymaking

officials,

i.e.,

officials

with

final

decision making authority, which caused the alleged violation of
plaintiff's civil rights, see Amnesty America v. Town of West
Hartford, 361 F.3d 113, 126 (2d Cir. 2004); Jeffes v. Barnes, 208
F.3d 49, 57 (2d Cir. 2000); (3) a practice “so persistent and
widespread as to practically have the force of law,” Connick, 131
S. Ct. at 1359; see also Green v. City of New York, 465 F.3d 65, 80
(2d

Cir.

2006),

constructive

or

that

acquiescence

“was
of

so

manifest

senior

as

to

policy-making

imply

the

officials,”

Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir.
2004)

(quotations

policymaking

and

official

citations
exhibit[ed]

omitted);
deliberate

or

(4)

that

“a

indifference

to

constitutional deprivations caused by subordinates,” Cash, 654 F.3d
at 334 (quotations and citations omitted); see also Okin v. Village
of Cornwall–on–Hudson Police Dep’t, 577 F.3d 415, 439 (2d Cir.
2009) (holding that a municipal custom may be found when “faced
with a pattern of misconduct, [the municipality] does nothing,
compelling the conclusion that [it] has acquiesced in or tacitly
authorized its subordinates' unlawful actions.” (quotations and
citations omitted), i.e., “a local government’s decision not to
train certain employees about their legal duty to avoid violating
citizens’ rights . . . amount[ing] to deliberate indifference to
the rights of persons with whom the untrained employees come into
9

contact,” Connick, 131 S. Ct. at 1359 (quotations, alterations and
citations

omitted),

investigate

or

or

rectify

a

policymaking
a

potentially

official’s
serious

failure
problem

to
of

unconstitutional conduct of which he or she had notice, evidencing
deliberate

indifference,

“rather

than

mere

negligence

or

bureaucratic inaction,” Amnesty America, 361 F.3d at 128.
Here, even affording the pro se Complaint a liberal
construction, there are no factual allegations from which the Court
could reasonably construe a plausible Section 1983 cause of action
against Nassau County.
IV.

Leave to Amend
Although “[t]he court should freely give leave [to amend]

when justice so requires,” FED. R. CIV. P. 15(a)(2), “motions to
amend should generally be denied in instances of futility, undue
delay, bad faith or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, or undue prejudice
to the non-moving party.”

Burch v. Pioneer Credit Recovery, Inc.,

551 F.3d 122, 126 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); see also Ruotolo
v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008).

Here, amendment

to Plaintiff’s claims concerning the medical treatment Plaintiff
received for the alleged spider bite and chest pain is futile given
his allegations that adequate medical care was provided for these
ailments.

However, with regard to his claims concerning the food
10

at the Nassau Jail, the Court will afford Plaintiff an opportunity
to amend such claims.

Although the denial of a single meal as

alleged is generally insufficient to give rise to a constitutional
deprivation, Plaintiff also alleges that there were mouse droppings
in his cereal and roaches on the food cart.

Though dubious, the

Court will afford Plaintiff an opportunity to amend his Complaint
to allege a plausible cruel and unusual punishment claim concerning
the food at the Nassau Jail as set forth below.
“The

Eighth

Amendment

prohibits

‘cruel

and

unusual

punishment’ and the Supreme Court has held that this requires the
conditions of a prisoner’s confinement to be ‘humane,’ Farmer v.
Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994), although not necessarily ‘comfortable,’ Rhodes v. Chapman,
452 U.S. 337, 349, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)).”
Butler v. Suffolk County, --- F.R.D. ----, 2013 WL 1136547, *7
(Mar. 19, 2013) (citing Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir.
2012); Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)).
However, “a person detained prior to conviction receives protection
against mistreatment at the hands of prison officials under the Due
Process Clause of the Fifth Amendment if the pretrial detainee is
held

in

federal

custody,

or

the

Due

Process

Clause

Fourteenth Amendment if held in state custody.”

of

the

Caiozzo v.

Koreman, 581 F.3d 63, 69 (2d Cir. 2009). Though Plaintiff does not
allege whether he is a pre-trial detainee or post-conviction, the
11

distinction

is

of

no

moment

because,

regardless

of

whether

Plaintiff is a convicted prisoner or pretrial detainee, “the
standard for deliberate indifference is the same under the Due
Process Clause of the Fourteenth Amendment [or Fifth Amendment] as
it is under the Eighth Amendment.”

Id. at 70–71, 72; see also

Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000).
“The

Eighth

Amendment

requires

prison

officials

to

‘ensure that inmates receive adequate food, clothing, shelter, and
medical care.’”

Gonsalves v. DeVeau, 11-CV-0835, 2012 WL 6104788,

*2 (D. Conn. Dec. 7, 2012) (citing Farmer, 511 U.S. at 832 (1994)).
Thus, at a minimum, “nutritionally adequate food that is prepared
and served under conditions which do not present an immediate
danger to the health and well being of the inmates who consume it”
must be provided to inmates.

Robles v. Coughlin, 725 F.2d 12, 15

(2d Cir. 1983); Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980)
(describing

the

area

where

food

is

prepared

and

often

left

uncovered as being dusty, moldy and infested with rodents and
roaches). However, a “mere allegation of mishandling of food alone
is insufficient to establish an Eighth Amendment claim.

To state

a cognizable claim under the Eighth Amendment, a plaintiff must
allege a distinct and palpable injury.”

Harris v. Ashlaw, No. 07-

CV-0358, 2007 WL 4324106 at *5, (N.D.N.Y. Dec. 5, 2007).
In addition, “a claim alleging that prison conditions
violate the Eighth Amendment must satisfy both an objective and
12

subjective requirement -- the conditions must be ‘sufficiently
serious’ from an objective point of view, and the plaintiff must
demonstrate

that

prison

officials

acted

subjectively

with

‘deliberate indifference.’” Harris, 2007 WL 4324106 at *4 (quoting
Leach v. Dufrain, 103 F. Supp. 2d 542, 546 (N.D.N.Y. 2000); see
also

Collazo

v.

Pagano,

656

F.3d

131,

135

(2d

Cir.

2011)

(deliberate indifference claim has both an objective and subjective
component).

Objectively,

“the

alleged

deprivation

must

be

sufficiently serious, in the sense that a condition of urgency, one
that may produce death, degeneration, or extreme pain, exists.”
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).
to

determine

whether

an

alleged

deprivation

was

In order

objectively

serious, the Court must inquire (1) whether the prison officials
acted reasonably in response to the inmate’s needs and (2) what
harm, if any, the inadequacy in the officials’ response to the
inmate’s

need

Salahuddin

v.

has

caused

Goord,

467

or

will

F.3d

likely

263,

cause

279–80

(2d

the

inmate.

Cir.

2006).

“Subjectively, the official must have acted with the requisite
state of mind, the ‘equivalent of criminal recklessness,’” Collazo,
656 F.3d at 135 (quoting Hathaway, 99 F.3d at 553); see also Wilson
v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 115 L. Ed. 2d 271
(1991) (holding that a deliberate indifference claim “mandate[s]
inquiry into a prison official’s state of mind.”), i.e., the
13

official must have “act[ed] or fail[ed] to act while actually aware
of a substantial risk that serious inmate harm will result.”
Salahuddin, 467 F.3d at 280; see also Jabbar v. Fischer, 683 F.3d
54, 57 (2d Cir. 2012) (“The prison official must know of, and
disregard,

an

excessive

risk

to

inmate

health

or

safety.”);

Caiozzo, 581 F.3d at 72 (holding that the plaintiff must establish
that the official “knew of and disregarded an excessive risk to
[the plaintiff's] health or safety and . . . was both aware of
facts from which the inference could be drawn that a substantial
risk of serious harm existed, and also drew the inference.”
(alterations
allegations

and
of

quotations

negligen[ce]

deliberate indifference.”

omitted)).
.

.

.

do

Generally,

not

state

a

“mere

claim

of

Hathaway, 99 F.3d at 553; see also

Jabbar, 683 F.3d at 57 (“[D]eliberate indifference requires more
than mere negligence.”

(Internal quotation marks and citation

omitted)).
Even

affording

the

pro

se

Complaint

a

liberal

construction, Plaintiff has alleged only that he was deprived of a
lunch meal on one occasion in August 2012, that there were mouse
droppings in his cereal on one occasion in June 2012, and that
roaches were inside the food cart for some ten months.

However,

Plaintiff does not allege to have suffered any injury as a result.
Although a “substantial deprivation of food” may implicate a
prisoner’s Constitutional rights, Robles, 725 F.2d at 15-16, the
14

denial of food to an inmate on one occasion is not a per se
violation of the Constitution. Ward v. Goord, 06-CV-1429, 2009 WL
102928, at * 6 (N.D.N.Y. Jan. 13, 2009) (citing Robles, 725 F.2d at
15).

Thus, as pled, Plaintiff’s allegations concerning the food

provided at the Nassau Jail fall far short and clearly do not rise
to the level of a constitutional deprivation.

However, in an

abundance of caution, Plaintiff is afforded leave to file an
Amended Complaint concerning the food issues described in the
Complaint.

To the best of his ability, Plaintiff must set forth

the factual allegations to support his cruel and inhuman treatment
claim against a proper defendant, including all relevant dates and
injuries he claims to have suffered.

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.

Therefore, it is important for Plaintiff to include all

necessary information that was in the first Complaint. The Amended
Complaint must be captioned as an “Amended Complaint” and bear the
same docket number as this Order.
time.

No summons shall issue at this

If Plaintiff fails to file an Amended Complaint within the

time allowed, the Complaint shall be dismissed, judgment shall
enter and the case will be closed.

If Plaintiff files an Amended

Complaint, the Court will review it pursuant to 28 U.S.C. § 1915A.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
15

to proceed in forma pauperis is GRANTED, but the Complaint is sua
sponte

DISMISSED

without

prejudice

1915(e)(2)(B)(ii), 1915A(b)

pursuant

to

28

U.S.C.

§§

unless Plaintiff files an Amended

Complaint in accordance with this Order within thirty (30) days
from the date that this Order is served upon him.
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:

May
1 , 2013
Central Islip, New York

16