Lee v. DeMarco et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis. 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 dismis sed with prejudice unless plaintiff files an amended complaint within thirty (30) days from the date of this Order 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 4/4/2014. (Florio, Lisa)
DIF
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------)(
GEORGE LEE,
Plaintiff,
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.
--------------------------------------------------------------)(
f \ \...E ~FICE
IN CLERK 6&RT E 0 N '(
US DISTRICT
*
t>,~R QA tQH
NOOff\CE
LONG 15\.A
FEUERSTEIN, J:
I.
*
Introduction
On August 13, 2013, incarcerated pro se 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 within thirty (30) days from the date of this Order.
.-.
..
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II.
The Complaint
Plaintiff's 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~
IV. As a result, plaintiff seeks to recover $20 million ($20,000,000) for "punitive
and compensatory damages. !d. at ~ V. Plaintiff also seeks to have the "officer involved
removed from his job." !d.
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 immune from 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 prison.er proceeding in forma pauperis).
It is axiomatic that district courts are required to read pro se complaints liberally,
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle
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
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'
suggest" Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F3d 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. CountyofSuffolk, 607 F3d 31,33 (2d Cir.
2010); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct 1937, 173 LEd.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 LEd.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."' Id (quoting Twombly,
550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of
'further factual enhancement."' Id (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 F3d 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 LEd.2d 868; see also In re Amaranth Natural Gas Commodities Litig, 730 F.3d 170, 180
(2d Cir. 2013).
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 .... "
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.•
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 of the 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 "(1)
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
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 Dis!., 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 facts establishing the personal
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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 within thirty (30) days from the date of this Order 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
complaint. The amended complaint shall be clearly labeled "amended complaint" and bear the
same docket number as this case, 13-CV-4604(SJF)(WDW).
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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 within thirty (30) days
from the date of this Order 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. Feuerstein
United States District Judge
Dated: April4, 2014
Central Islip, New York
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