Lee v. DeMarco et al

Filing 14

AMENDED ORDER: SO ORDERED that plaintiff's application to proceed in forma pauperis is granted. However, the plaintiff's claims against DeMarco, Ewald, Caracappa, and Meyerricks are dismissed with prejudice unless plaintiff files an amende d complaint on or before December 30,2014 as set forth above. 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. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 11/20/2014. (Florio, Lisa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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GEORGE LEE,

Plaintiff,

AMENDED ORDER
13-CV-4604(SJF)(WDW)

-againstSHERIFF VINCENT F. DEMARCO, CHARLES
EWALD, JOSEPH T. CARACAPPA, JOHN P.
MEYERRICKS, each in their own individual and
official capacity,
Defendants.

FILED
IN CLERK'S OFFICE
US DISTRICT COURT E 0 NY

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t-;C"! 2 0 Z014

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LONG i0'. J,~:.o OFFICE

FEUERSTEIN, J:
I.

Introduction
On August 13, 2013, incarcerated prose plaintiff George Lee ("plaintiff") filed a

complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983") against Suffolk County
Sheriff Vincent F. DeMarco ("DeMarco"), Charles Ewald ("Ewald"), Joseph T. Caracappa
("Caracappa"), and John P. Meyerricks ("Meyerricks") (collectively, "defendants"),
accompanied by an application to proceed in forma pauperis. Upon review of plaintiff's
declarations in support of his application to proceed in forma pauperis, the Court finds that his
financial position qualifies him to commence this action without prepayment of the filing fee.
See 28 U.S.C. § 1915(a)(l). Accordingly, the application to proceed in forma pauperis is

granted. However, for the reasons that follow, the complaint is dismissed with prejudice unless
plaintiff files an amended complaint on or before December 30,2014. 1

On April 4, 2014, this Court entered an order granting plaintiff's application to proceed in forma
pauperis and dismissing plaintiffs claims against defendants unless plaintiff filed an amended complaint
within thirty (30) days. [Docket Entry No.7 (the "April4, 2014 Order")]. In light of the fact that the
copy of the April4, 2014 Order that was mailed to plaintiff was returned as undeliverable [Docket Entry
No.9], the Court hereby issues this Amended Order giving plaintiff until December 30, 2014 to file an

II.

The Complaint
Plaintiffs brief, handwritten complaint, submitted on the Court's Section 1983 complaint

form, alleges in its entirety that:
On January 2"d, 2013 I was being harassed by an officer working
the morning shift on 4EN where I was housed. He told me that I
"act Black" and I was "a wanna-be N----r." This officer then told
me, a while later, that I had a "call out." When he let me out of the
Sally Port punched me in the face and repeatly [sic] kicked me in
the back and ribs. The incident caused me to stay at Peconic Bay
Medical Center for 5 days suffering from traumatic pneumothorax
and a gash above my eye requiring stitches. My family contacted
Internal Affairs who are investigating. The officer involved told
me, "I will kill you if you talk about this."
Compl. at 'If IV. As a result, plaintiff seeks to recover $20 million ($20,000,000) for "punitive
and compensatory damages. !d. at 'If V. Plaintiff also seeks to have the "officer involved
removed from his job." Id
II.

Discussion
A.

Standard of Review

Under both the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and the in forma

pauperis statute, 28 U.S.C. § 1915(e)(2), a district court must dismiss a complaint if it is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immunefrom such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B);

see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (finding both Section 1915 and Section
1915A to be applicable to a prisoner proceeding in forma pauperis).
It is axiomatic that district courts are required to read prose complaints liberally,

Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle

amended complaint in accordance with the directions herein. The Clerk of the Court is respectfully
directed to serve a copy of this Amended Order on plaintiff at his new address [Docket Entry No. 12].
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v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Hogan v. Fischer, 738 F.3d
509, 515 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they
suggest." Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013)
(internal quotation marks and citations omitted). Moreover, at the pleadings stage of the
proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual
allegations in the complaint." Harrington v. County ofSuffolk, 607 F .3d 31, 33 (2d Cir.
2010); see also Ashcroft v. Iqbal, 556 U.S. 662,678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009).
Nevertheless, 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). While the plausibility standard "does not require detailed factual
allegations," it "demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft, 556 U.S. at 678. "A pleading that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action will not do."' !d. (quoting Twombly,
550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of
'further factual enhancement."' !d. (quoting Twombly, 550 U.S. at 557); accord Pension Benefit
Guar. Corp. ex rei. Saint Vincent Catholic Med. Ctr. Ret. Plan v. Morgan Stanley Inv. Mgmt.
Inc., 712 F.3d 705, 717 (2d Cir. 2013). The plausibility standard requires "more than a sheer
possibility that a defendant has acted unlawfully." Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937,
173 L.Ed.2d 868; see also In re Amaranth Natural Gas Commodities Litig., 730 F .3d 170, 180
(2d Cir. 2013).

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C.

Section 1983

Section 1983 of Title 42 of the United States Code provides, in relevant part:
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 .... "
42 U.S.C. § 1983. "Section 1983 provides a cause of action against any person who deprives an
individual of federally guaranteed rights 'under color' of state law." Filarsky v. Delia, 132 S.Ct.
1657, 1661, 182 L.Ed.2d 662 (2012). Thus, to state a Section 1983 claim, a plaintiff must allege:
(I) that the challenged conduct was "committed by a person acting under color of state law," and
(2) that such conduct "deprived [the plaintiff] of rights, privileges, or immunities secured by the
Constitution or laws ofthe 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)); see also Rehberg v. Paulk,
132 S.Ct. 1497, 1501-02, 182 L.Ed.2d 593 (2012).
A Section 1983 claim must allege the personal involvement of any individual defendant
in the purported constitutional deprivation. See Spavone v. New York State Department of
Correctional Services, 719 F.3d 127, 135 (2d Cir. 2013); Grullon v. City ofNew Haven, 720
F.3d 133, 138-39 (2d Cir. 2013). "Personal involvement" may be established by evidence of
direct participation in the challenged conduct, or by evidence of a supervisory official's "(I)
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." Hayut v. State
Univ. ofNew York, 352 F.3d 733, 753 (2d Cir. 2003); see also Grullon, 720 F.3d at 139. "An

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individual cannot be held liable for damages under § 1983 'merely because he held a high
position of authority."' Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107, 127
(2d Cir. 2004) (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. I 996)). A complaint based
upon a violation under Section I 983 that does not allege facts establishing the personal
involvement of an individual defendant fails as a matter of law. See Costello v. City of

Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011).
Plaintiff has not adequately pled the personal involvement of any of the defendants.
Plaintiff has not alleged any conduct attributable to any of the defendants and seeks to impose
liability merely because of the supervisory positions they hold. Accordingly, plaintiff's claims

against DeMarco, Ewald, Caracappa, and Meyerricks are dismissed with prejudice unless
plaintiff files an amended complaint on or before December 30,2014 that includes factual
allegations of conduct or inaction attributable to these defendants. Plaintiff's failure to
timely amend his complaint will lead to the dismissal of his claims against these defendants
with prejudice and judgment shall enter without further notice.
Plaintiff is advised that an amended complaint completely replaces the original
complaint. To the best of his ability, plaintiff must include factual allegations sufficient to infer
that he suffered a constitutional deprivation against each defendant. Plaintiff may also amend his
complaint to include the individual officer at the Suffolk Jail who participated in the challenged
conduct as a defendant. If plaintiff is unable to identify such individual within the time allotted,
he may name him as "John Doe" in any amended complaint so long as he includes some factual
allegations concerning his conduct, including the date(s)/location(s) of the alleged incident(s), a
description of his interaction(s), and/or other descriptive information such that his identity may
later be ascertained by Suffolk County and such individual can be served with the amended

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complaint. The amended complaint shall be clearly labeled "amended complaint" and bear the
same docket number as this case, 13-CV-4604(SJF)(WDW).
IV.

Conclusion
For the foregoing reasons, plaintiff's application to proceed in forma pauperis is granted.

However, the plaintiff's claims against DeMarco, Ewald, Caracappa, and Meyerricks are
dismissed with prejudice unless plaintiff files an amended complaint on or before
December 30,2014 as set forth above. 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).

SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feue~tein
United States District Judge

Dated: November 20,2014
Central Islip, New York

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