Cole v. Nassau County et al

Filing 7

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED. The Amended Complaint is sua sponte DISMISSED WITH PREJUDICE as against the Nassau County Sheriff's Department for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b). Plaintiff's claims against Nassau County and Michael Sposato shall proceed. Accordingly, the C lerk of Court is directed to issue Summonses for Nassau County and for Michael Sposato and to forward copies of the Summonses and the Amended Complaint to the United States Marshal's Service for service upon Defendants Nassau County and Michael Sposato. The Clerk of Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. 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. So Ordered by Judge Joanna Seybert on 10/16/2013. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
RASAAN COLE,
Plaintiff,

MEMORANDUM & ORDER
13-CV-4645(JS)(AKT)

-againstNASSAU COUNTY, MICHAEL SPOSATO,
in his individual and official
capacity, and NASSAU COUNTY
SHERIFF’S DEPARTMENT,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Rasaan Cole, pro se
38 E. 51st Street
Brooklyn, NY 11203
For Defendants:

No appearances.

SEYBERT, District Judge:
On August 14, 2013, then-incarcerated pro se Plaintiff
Rasaan Cole (“Plaintiff”) filed a Complaint in this Court pursuant
to 42 U.S.C. § 1983 (“Section 1983”) against Nassau County, Michael
Sposato (“Sposato”), and the Nassau County Sheriff’s Department
(“Sheriff’s Dept.”) (collectively, “Defendants”), accompanied by an
application to proceed in forma pauperis.

Plaintiff’s Complaint

was also accompanied by an Amended Complaint.
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court determines that
the Plaintiff’s financial status qualifies him to commence this
action without prepayment of the filing fee.
§§ 1914(a); 1915(a)(1).

See 28 U.S.C.

Therefore, Plaintiff’s request to proceed

in forma pauperis is GRANTED.

However, for the reasons that

follow,

the

Amended

Complaint,

which

supercedes

the

original

Complaint, is sua sponte DISMISSED IN PART.
BACKGROUND1
At the time that Plaintiff filed his Amended Complaint,
he was an unconvicted inmate who had been subjected to assault and
abuse

by

other

“gang-related”

Correctional Center.

inmates

at

the

(Am. Compl. ¶¶ 1, 10, 16-18.)

Nassau

County

According to

Plaintiff, Defendants Sposato and Nassau County have knowledge of
a “pattern and practice” whereby inmates are attacking other
inmates resulting in serious injuries.

(Id. ¶¶ 2-3, 15, 19-26.)

He claims that Defendants Sposato and Nassau County are aware that
the security protocols in place at the Nassau County Correctional
Center are not being followed by the corrections officers at the
jail and, specifically, that corrections officers often abandon
their security posts on the units to which they are assigned. (Id.
¶¶ 15-16, 20-23.)
Plaintiff alleges that on July 19, 2013, other inmates
assaulted him, causing injury.
help

(Id. ¶ 16.)

Plaintiff cried for

but no corrections officers were at their security post on

the unit, and other officers who heard his cries did not come to
his aid.

(Id.)
As a result, Plaintiff claims that he was deprived of his

1

The following facts are taken from Plaintiff’s Amended Complaint
and are presumed to be true for the purposes of this Memorandum and
Order.
2

constitutional right under the Fourteenth Amendment to the United
States Constitution, as a pretrial detainee, to be free from cruel
and unusual punishment.

(Id. ¶¶ 25-26, a2.)

As a result of the

denial of his rights, he was assaulted and suffered a “fracture of
the zygomatic bone,” loss of sensation in his face, shoulder and
back injuries, severe headaches, tremors, and scars on his leg and
back.

(Id. ¶ 17.)

Plaintiff seeks to recover an unspecified

amount of compensatory and punitive damages as well as declaratory
relief to the effect that the attacks described in his Amended
Complaint are unconstitutional.

(Id. ¶¶ a-c.)

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 upon which relief may be
2

Plaintiff’s Amended Complaint has numbered paragraphs for pages
1-11 and then switches to lettered paragraphs on pages 13-14. The
Court did not receive a page 12 in the Amended Complaint.
3

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. § 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).

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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).

The

plausibility standard requires “more than a sheer possibility that
a 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.’”
at

678 (quoting Twombly, 550 U.S. at 555).

III.

Section 1983
Section 1983 provides that
4

Iqbal, 556 U.S.

[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.
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)).
A.

Claims Against the Nassau County Sheriff’s Department
It

is

well-established

that

“under

New

York

law,

departments that are merely administrative arms of a municipality
do

not

have

a

legal

identity

separate

and

apart

municipality and, therefore, cannot sue or be sued.”

from

the

Davis v.

Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002).
Thus,

Plaintiff’s

claims

against

the

Nassau

County

Sheriff’s

Department are not plausible because they have no legal identity
separate and apart from Nassau County and are thus DISMISSED WITH
PREJUDICE. See Lukes v. Nassau Cnty. Jail, No. 12-CV-1139, 2012 WL
1965663, at *2 (E.D.N.Y. May 29, 2012) (dismissing claims against
5

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,

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).
B.

Claims Against Nassau County and Michael Sposato
Plaintiff’s claims against Defendants Nassau County and

Michael Sposato shall proceed.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED.

The Amended Complaint is

sua sponte DISMISSED WITH PREJUDICE as against the Nassau County
Sheriff’s Department for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b).
Plaintiff’s claims against Nassau County and Michael
Sposato shall proceed. Accordingly, the Clerk of Court is directed
to issue Summonses for Nassau County and for Michael Sposato and to
forward copies of the Summonses and the Amended Complaint to the
United States Marshal’s Service for service upon Defendants Nassau
County and Michael Sposato.

See 28 U.S.C. § 1915(d).

The Clerk of Court is further directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
6

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: October
16 , 2013
Central Islip, New York

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