Edwards v. Destefano
Filing
6
MEMORANDUM & ORDER granting 3 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, the Complaint is sua sponte DISMISSED WITHOUT PREJUDICE for failure to state a claim as to Defendants Edward Mangano, Michael Sposato , John Doe of the Medical Staff, Officer Pette, and Grievance Officer John Doe. Plaintiff's Amended Complaint must be filed within thirty (30) days from the date of this Memorandum and Order. The Court requests that the Nassau County Attorney ascertain the name of the Defendant identified by the Plaintiff as Corporal John Doe employed at the Nassau County Correctional Center, who was involved in the incident described in the Complaint which is alleged to have occurred on April 19, 2013. This information is requested to be produced to the Plaintiff and to the Court within two (2) weeks from the date that this Memorandum and Order is served upon the Nassau County Attorney. Plaintiff's claims shall proceed against Defendants Stef ano, Officer John Doe #2853, McNamara, O'Brien, Carpio, Anderson, and Picolli. The Clerk of the Court is directed to issue Summonses for Defendants Stefano, Officer John Doe #2853, McNamara, O'Brien, Carpio, Anderson, and Picolli and to for ward the Summonses and copies of the Complaint to the United States Marshal Service for service upon these Defendants without prepayment of the filing fee. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order wo uld 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 directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 11/18/2013. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
RAHEEM EDWARDS,
Plaintiff,
-against-
MEMORANDUM & ORDER
13-CV-4345 (JS)(AKT)
OFFICER D. STEFANO1 #297 OR #2970,
in his official and individual
capacities as Officer of Nassau
County; OFFICER JOHN DOE #2853,
in his official and individual
capacities; CORPORAL JOHN DOE,
in his official and individual
capacities; OFFICER PETTE #297
OR #2970, in his official and
individual capacities; SGT.
MCNAMARA, in his official and
individual capacities; SGT. O’BRIEN,
in his official and individual
capacities; OFFICER CARPIO #3003,
in his official and individual
capacities; CORPORAL ANDERSON, in
his official and individual
capacities; OFFICER PICOLLI, in his
official and individual capacities;
MICHAEL SPOSATO, Sheriff, in his
official and individual capacities;
JOHN DOE, Medical Staff, in his
official and individual capacities;
EDWARD P. MANGANO, in his official
and individual capacities; and JOHN
DOE, Grievance Officer, in his
official and individual capacities;
Defendants.
----------------------------------X
1
In his Complaint, Plaintiff identifies this defendant’s last
name as “D. Stefano or DeStefano.” (Compl. at 3.) For clarity
and consistency, this Order will refer to this defendant as
“Stefano.” The Court does so without deciding the correct
surname for this defendant.
APPEARANCES
For Plaintiff:
Raheem Edwards, pro se
06A6473
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
For Defendants:
No appearances.
SEYBERT, District Judge:
On
July
29,
2013,
pro
se
plaintiff
Raheem
Edwards
(“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983
(“Section
1983”)
against
Officer
D.
Stefano
#297
or
#2970
(“Stefano”), Officer John Doe #2853 (“Officer Doe”), Corporal John
Doe (“Corporal Doe”), Officer Pette #297 or #2970 (“Pette”), Sgt.
McNamara (“McNamara”), Sgt. O’Brien (“O’Brien”), Officer Carpio
#3003 (“Carpio”), Corporal Anderson (“Anderson”), Officer Picolli
(“Picolli”), Michael Sposato (“Sposato”), John Doe of the Medical
Staff (“John Doe”), Edward Mangano (“Mangano”), and Grievance
Officer John Doe (“Grievance Officer Doe”).
Plaintiff’s Complaint
is accompanied by an application to proceed in forma pauperis.
Upon
review
of
the
declaration
in
support
of
the
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fee.
1915(a)(1).
See 28 U.S.C. §§ 1914(a);
Therefore, Plaintiff’s request to proceed in forma
pauperis is GRANTED.
However, for the reasons that follow, the
2
Complaint is sua sponte DISMISSED IN PART.
BACKGROUND2
The Complaint alleges that on April 19, 2013, various
staff members at the Nassau County Jail in East Meadow, New York
separated Plaintiff from the prison population and assaulted him.
(Compl. ¶ IV.)
Specifically, Plaintiff claims that as he was
heading to outdoor recreation, Stefano approached Plaintiff and
asked Plaintiff a question. (Id.) Before Plaintiff could respond,
Corporal Doe sprayed Plaintiff with “O.C. Spray.”
(Id.)
Several
officers then punched Plaintiff in the face, head, back, and side.
(Id.)
Immediately
following
minimal medical treatment.
Complaint.)
Although
the
assault,
Plaintiff
received
(Compl. ¶ IV, Continuation Annexed to
Plaintiff
requested
treatment, his requests were denied.
(Id.)
additional
medical
Since then, Plaintiff
has experienced severe headaches, back pain, and shoulder pain.
(Compl. ¶ IV. A.)
Plaintiff
seeks
injunctive
relief,
$1,000,000
compensatory damages, and $5,000,000 in punitive damages.
in
(Compl.
¶ V.)
2
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
3
DISCUSSION
I.
Application to Proceed In Forma Pauperis
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 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
A district court is required to dismiss an in forma
pauperis 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.
See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b).
required
to
dismiss
determination.
the
action
as
soon
as
it
The Court is
makes
such
a
See id. § 1915A(b).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004). As stated earlier, at the pleadings stage, 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), aff’d. --- U.S. -4
--, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing Iqbal, 556
U.S. 662).
However, a complaint must plead sufficient facts to
“state a claim to relief that is plausible on its face.”
Bell
Atlantic 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 679 (citations omitted).
The plausibility standard requires “more than a sheer possibility
that defendant has acted unlawfully.”
Id. at 678;
accord Wilson
v. Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011).
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.’”
Iqbal, at 678 (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; accord Rehberg v. Paulk, --- U.S. ----, 132 S.
5
Ct. 1497, 1501–02, 182 L. Ed. 2d 593 (2012).
under
Section
1983,
a
plaintiff
must
To state a claim
“‘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 v. Dylag, 188 F.3d 51, 53
(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.
(2d Cir. 2010).
See Farid v. Elle, 593 F.3d 233, 249
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.
(2d Cir. 2010).
See Johnson v. Barney, 360 F. App’x 199
With these standards in mind, the Court considers
Plaintiff’s claims.
A.
County Executive Edward Mangano, Sheriff Michael Sposato,
John Doe of the Medical Staff, and Officer Pette
Although Plaintiff names Nassau County Executive Edward
Mangano, Nassau County Sheriff Michael Sposato, John Doe of the
Medical Staff, and Officer Pette as Defendants, there are no
factual allegations concerning them, nor are they mentioned in the
6
body of the Complaint.
As set forth above, a plausible Section
1983 claim must allege the personal involvement of the defendant in
the alleged constitutional violation.
See 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))).
As such,
Plaintiff has not provided any information as to the personal
involvement of these Defendants in the incident in question.
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.
See Rivera v. Fischer, 655 F.
Supp. 2d 235, 237 (W.D.N.Y. 2009) (citations omitted).
Given that
Defendant Mangano is the County Executive of Nassau County and
Defendant Sposato is the Nassau County Sheriff, it appears that
Plaintiff seeks to hold these Defendants liable solely because of
their supervisory positions.
A supervisor cannot be liable for
damages under Section 1983 solely by virtue of being a supervisor
because there is no respondeat superior liability under Section
1983.
See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).
Here,
Plaintiff’s
Complaint
does
7
not
include
any
factual
allegations sufficient to demonstrate any personal involvement by
Defendants Mangano or Sposato.
Accordingly, the Section 1983 claim asserted against
County Executive Mangano, Sheriff Sposato, John Doe of the Medical
Staff, and Officer Pette are not plausible and are DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
B.
Grievance Officer John Doe
Plaintiff asserts that Grievance Officer Doe violated his
rights by failing to respond to the grievances Plaintiff filed
regarding the assault.
Complaint.)
(Compl. ¶ IV, Continuation Annexed to
Failure to respond to a grievance, however, does not
rise to the level of a constitutional violation.
See Shell v.
Brzezniak, 365 F. Supp. 2d 362, 370 (W.D.N.Y. 2005) (“[I]nmate
grievance programs created by state law are not required by the
Constitution and consequently allegation that prison officials
violate those procedures does not give rise to a cognizable 1983
claim.”) (citation omitted); Torres v. Mazzuca, 246 F. Supp. 2d
334, 342 (S.D.N.Y. 2003) (“Prison grievance procedures do not
confer
any
substantive
right
upon
an
inmate
requiring
the
procedural protections envisioned by the Fourteenth Amendment.”).
Therefore, a claim of failure to respond to an inmate grievance,
such as this, which seeks to remedy an alleged violation of a state
prison’s inmate grievance procedures, does not state a claim upon
8
which
relief
can
be
granted
and
must
be
DISMISSED
WITHOUT
PREJUDICE.
C.
Defendants Stefano, Officer John Doe #2853, McNamara,
O’Brien, Carpio, Anderson, and Picolli
Affording the pro se Complaint a liberal construction,
Plaintiff’s Section 1983 claims against these individual Defendants
shall proceed; the Court declines to sua sponte dismiss these
claims at this early stage in the proceeding.
See McEachin, 357
F.3d at 200 (“We have frequently reiterated that ‘[s]ua sponte
dismissal of pro se prisoner petitions which contain non-frivolous
claims without requiring service upon respondents or granting leave
to amend is disfavored by this Court.’”) (quoting Moorish Sci.
Temple of Am. Inc. v. Smith, 693 F.2d 987, 990 (2d Cir. 1982)); See
also 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 in law or fact.
Where
a colorable claim is made out, dismissal is improper prior to
service
of
process
and
the
defendants’
answer.”)
(internal
citations and quotations omitted).
D.
Corporal John Doe
The
claims
against
Corporal
Doe
will
also
proceed.
However Corporal Doe is identified in the Complaint only by a title
9
and the generic name “John Doe” given by the Plaintiff. The United
States Marshals Service will not be able to serve him without more
information.
Accordingly, the Clerk of Court shall send a copy of
the Complaint and this Order to the Nassau County Attorney.
Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), the
Court requests that the Nassau County Attorney ascertain the name
of the officer identified by the Plaintiff as Corporal John Doe
employed at the Nassau County Correctional Center, also known as
the Nassau County Jail, in East Meadow, New York, who was involved
in the incident described in the Complaint which is alleged to have
occurred on April 19, 2013.
The Nassau County Attorney need not
undertake to defend or indemnify this individual at this juncture.
This
Memorandum
and
Order
merely
provides
a
means
by
which
Plaintiff may properly serve this Defendant as instructed by the
Second Circuit in Valentin.
The Nassau County Attorney is hereby
requested to produce the information specified above regarding the
identity of Corporal John Doe to the Plaintiff and to the Court
within two (2) weeks from the date that this Order is served upon
him. Once this information is provided, Plaintiff’s Complaint will
be amended to include the name for the person currently identified
as Defendant Corporal John Doe.
At that time, the Clerk of the
Court shall issue a Summons and shall forward copies of the Summons
and the Complaint to the United States Marshals Service for service
10
upon the Defendant currently identified as Corporal John Doe
without prepayment of fees.
IV.
Leave to Replead
Rule 15(a)(2) of the Federal Rules of Civil Procedure
provides that a party shall be given leave to amend the Complaint
“when justice so requires.”
Nevertheless, “[l]eave to amend,
though liberally granted, may properly be denied for: ‘undue delay,
bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.’”
Ruotolo v. City of N.Y.,
514 F.3d 184, 191 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); see also Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008).
“[W]hen addressing a pro se complaint, a district court should not
dismiss without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid
claim might be stated.”
Thompson v. Carter, 284 F.3d 411, 416 (2d
Cir. 2002) (internal quotation marks and citation omitted); see
also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
As
Plaintiff
may
plausibly
raise
a
claim
against
Defendants Edward Mangano, Michael Sposato, John Doe of the Medical
Staff, Officer Pette, and Grievance Officer John Doe, such claims
11
are DISMISSED WITHOUT PREJUDICE and with leave to replead.
If
Plaintiff wishes to file an Amended Complaint, he must do so within
thirty (30) days of the date of this Memorandum and Order.
The
Amended Complaint must be titled “Amended Complaint” and bear the
same docket number as this Memorandum and Order, No. 13-CV-4345
(JS)(AKT).
Plaintiff’s
Amended
Complaint
will
supercede
his
original Complaint. Therefore all claims and allegations Plaintiff
wishes to pursue should be included in his Amended Complaint.
If
Plaintiff does not file an Amended Complaint, his claims against
these defendants will be dismissed with prejudice.
CONCLUSION
For the reasons set forth above, the Complaint is sua
sponte DISMISSED WITHOUT PREJUDICE for failure to state a claim as
to Defendants Edward Mangano, Michael Sposato, John Doe of the
Medical Staff, Officer Pette, and Grievance Officer John Doe.
Plaintiff’s Amended Complaint must be filed within thirty (30) days
from the date of this Memorandum and Order.
If Plaintiff does not
timely file an Amended Complaint, his claims against Defendants
Edward Mangano, Michael Sposato, John Doe of the Medical Staff,
Officer Pette, and Grievance Officer John Doe will be dismissed
with prejudice.
The
Court
requests
that
the
Nassau
County
Attorney
ascertain the name of the Defendant identified by the Plaintiff as
12
Corporal John Doe employed at the Nassau County Correctional
Center, who was involved in the incident described in the Complaint
which is alleged to have occurred on April 19, 2013.
This
information is requested to be produced to the Plaintiff and to the
Court within two (2) weeks from the date that this Memorandum and
Order is served upon the Nassau County Attorney.
Once this
information is provided, the Clerk of Court shall issue Plaintiff’s
Summons and shall forward the Summons and a copy of the Complaint
to
the
United
Defendant
States
currently
Marshals
identified
Service
as
for
service
Corporal
John
upon
Doe
the
without
prepayment of the filing fee.
Plaintiff’s
Stefano,
Officer
John
claims
Doe
shall
#2853,
proceed
against
McNamara,
Defendants
O’Brien,
Carpio,
Anderson, and Picolli. The Clerk of the Court is directed to issue
Summonses for Defendants Stefano, Officer John Doe #2853, McNamara,
O’Brien, Carpio, Anderson, and Picolli and to forward the Summonses
and copies of the Complaint to the United States Marshal Service
for service upon these Defendants without prepayment of the filing
fee.
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,
13
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this
Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
November
18 , 2013
Central Islip, New York
14
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