Lashley v. Sposato et al

Filing 10

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff's claim seeking to have all defts suspended without pay for a period of thirty (30) days is sua sponte dismissed as moot; plaintiff's claim seeking to be transferred to Rikers Island is sua sponte dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief; plaintiff's Section 1983 claims against Sheriff Sposato are sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915 A (b)(1) for failure to state a claim for relief; and plaintiff is granted leave to amend her complaint in accordance with this Order, provided she file such amended comp laint on or before March 3, 2014. The Clerk of the Court shall: (1) forward copies of the summonses, the complaint, this Memorandum and Order and the Notice of Hearing dated January 28, 2014 to the United States Marshal Service for service upon the r emaining defts forthwith; and, (2) pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this order upon plaintiff in accordance with Rule 5(b) of the Federal Rules of Civil Procedure. The Court certifies pursuan t 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. Michael Sposato (Sheriff of Nassau County Correctional Center) terminated. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 1/30/2014. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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SHARON LASHLEY,

Plaintiff,
MEMORANDUM & ORDER
13-CV-06343(SJF)(WDW)

-againstMICHAEL SPOSATO, SheriffofNassau County
Correctional Center, SERGEANT MORRONE, #125,
CORPORAL O'HEA, #365, CORRECTION OFFICER
GROSS, in their individual capacities,
Defendants.

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FILED

IN CLERK'S OFFICE
U S DISTRICT COURT E D NY

*

JAN 3 02014

*

LONG ISLAND OFFICE

FEUERSTEIN, District Judge:

I.

Introduction
On November 13, 2013,pro se plaintiff Sharon Lashley ("plaintiff") filed a civil rights

complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983") against defendants,
Sheriff Michael Sposato ("Sheriff Sposato"), Sergeant Morrone, #125, ("Sgt. Morrone"),
Corporal O'hea, #365, ("Cpl. O'hea"), and Correction Officer Gross ("C.O. Gross")
(collectively, "defendants"), accompanied by an application to proceed in forma pauperis.
Since plaintiff's financial status, as set forth in her declaration in support of her
application to proceed in forma pauperis, qualifies her to file the complaint without prepayment
of the filing

fees,~

28 U.S.C. § 1915(a)(l), the application to proceed in forma pauperis is

granted. However, for the reasons set forth below, the Section 1983 claims against Sheriff
Sposato and claims seeking to have the remaining defendants suspended without pay for thirty
(30) days and to have plaintiff transferred to Rikers Island are sua sponte dismissed.

II.

The Complaint'
Plaintiff alleges that, on or about August 30, 2013, she was ordered by an unidentified

corrections officer at the NCCC to remove the khimar she wears as an observant Muslim.
(Plaintiffs handwritten statement annexed to the Complaint ["Plf. Stat."] at !). According to
plaintiff, since her arrival at the NCCC on July 23, 2013, she has been "harassed" by various
corrections officers to remove the khimar. (Id. at I, 4). Specifically, on September 19,2013,
C.O. Gross ordered plaintiff to take the "towel" off of her head. (Id. at 1). Plaintiff refused,
explaining to C.O. Gross that it is a khimar and that she would not take it off because she is
Muslim. (Id.) According to plaintiff, C.O. Gross then pointed mace at her and ordered her to
"lock in." Mat 2). Plaintiff claims that while walking to her cell, she asked to speak with the
supervisor on duty, Cpl. O'hea, but he never went to speak with her. (lih) According to plaintiff,
as a result of being "locked in," she missed recreation and could not get her legal papers
notarized. (IQ.,)
Plaintiff further alleges that on September 19,2013, at approximately 9:30p.m., the
unidentified corrections officer on duty violated her due process rights by providing her with an
erroneous disciplinary report "that was not legible, in which [she] could not prepare her defense
due to her not being able to make out what it said." (Pif. Stat. at 2).
According to plaintiff, she was not released from "lock in" until September 24, 2013 at
8:30 a.m., when a grievance representative told her that Sergeant Miller, the grievance

1

All material allegations in the complaint are assumed to be true for the purposes of this
order, and do not constitute findings of fact by the Court. See,~ Rogers v. Citv of Troy. New
York, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a prose complaint for sua sponte dismissal, a
court is required to accept the material allegations in the complaint as true).
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supervisor, had ordered her to be released from "lock in." (Plf. Stat. at 3). However, at
approximately 2:00p.m. that same date, the officer on duty on plaintiffs housing unit,
Correctional Officer Dubois, told plaintiff that Cpl. O'hea had ordered her to be "locked in"
again.

iliU

According to plaintiff, on September 27, 2013, the grievance representative told her

that her "lock in" had been reinstated because the disciplinary report had been found and
plaintiffs grievance had been determined to be non-grievable.

ili!J

Plaintiff allegedly told the

grievance representative that Cpl. O'hea was harassing her because she is Muslim.

iliD

On September 30, 2013, plaintiff appeared before Sgt. Morrone for a disciplinary hearing,
during which she claimed that "her due process and constitutional rights were violated due to the
fact that the disciplinary report is not legible, she was locked twice for the same incident, and that
***she's been harrassed [sic] about khimar since she's been [in the NCCC]." (Plf. Stat. at 4).
According to plaintiff, Sgt. Morrone "stated he was releasing [her] from lock [in]." (.!4)
Plaintiff alleges that on October 1, 2013, she received an illegible disciplinary decision,
(Plf. Stat. at 4), finding her guilty of two (2) of the three (3) disciplinary charges brought against
her and imposing an eleven (11) day "lock-in" and a five dollar ($5.00) disciplinary surcharge.
(Notice of Disciplinary Hearing Disposition attached to the Complaint). According to plaintiff,
"that charge was not substantied [sic] in the body of the report [and] it was not specified what
[she] stated." (P1f. Stat. at 4). Plaintiff claims that the charge and direct order were "improperly
and misused [sic] by trying to right the wrong C.O. Gross made by demanding [her] to take her
khimar offvio1ating [her] constitutional right." (Plf. Stat. at 4-5). Plaintiff further claims that
Sgt. Morrone "maliciously went along with C.O. Gross racism in violating [her] constitutional
and due process rights by finding [her] guilty when the disciplinary report should have been

3

dismissed***." (Plf. Stat. at 5). In addition, plaintiff claims: (I) that her appeal of Sgt.
Morrone's decision was ignored; and (2) that she either did not receive her religious meals or,
when she did, the rice, burgers and vegetables were cold. (Plf. Stat. at 5).
Plaintiff seeks: (I) to recover damages in the amount of five hundred thousand dollars
($500,000.00); (2) to have all defendants suspended without pay for thirty (30) days; and (3) to
be transferred to Rikers Island. (Compl. at~ V).

III.

Discussion
A.

Standard of Review

Under both the Prison Litigation Reform Act, 28 U.S.C. § 19I5A2 , and the in forma

pauperis statute, 29 U.S.C. § I 915(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) and
1915(e)(2)(8). See Abbas v. Dixon, 480 F.3d 636,639 (2d Cir. 2007) (finding both Section
I915 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 I081 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285,50 L. Ed. 2d 25I (1976)); Hogan v. Fischer, 738 F.3d
509,515 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they

2

At the time she filed the complaint, plaintiff was incarcerated at the Nassau County
Correctional Center ("NCCC") and, thus, was a "prisoner" within the meaning of28 U.S.C. §
1915A(c). By letter filed on December 23,2013, plaintiff advised the Court that she has since
been released from custody.
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suggest." Gerstenbluth v. Credit Suisse Securities CUSA) LLC, 728 F Jd 139, 142-43 (2d Cir.
2013) (quotations 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 of Suffolk, 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 Corn. v. Twombly. 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007). The pleading of specific facts is not required; rather a complaint
need only give the defendant "fair notice of what the

* * * claim is and the grounds upon which it

rests." Erickson, 551 U.S. 89, 127 S. Ct. 2197 (quotations and citation omitted); see also
Anderson News. LLC v. American Media. Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied .Qy
Curtis Circulation Co. v. Anderson News. LLC, ---U.S.----, 133 S. Ct. 846, 184 L. Ed. 2d 655
(2013) (accord). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do."' Ashcroft, 556 U.S. at 678, 129 S. Ct. 1937 (quoting
Twombly, 550 U.S. at 555, 127 S. Ct. 1955). "Nor does a complaint suffice if it tenders 'naked
assertion[ s]' devoid of 'further factual enhancement."' Id. (quoting Twombly, 550 U.S. at 557,
127 S. Ct. 1955); see also Pension Benefit Guaranty Corn. ex rei. St. Vincent Catholic Medical
Centers Retirement Plan v. Morgan Stanley Investment Management Inc., 712 F.3d 705,717 (2d
Cir. 2013)(accord). 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; see also In re
Amaranth Natural Gas Commodities Litigation, 730 F.3d 170, 180 (2d Cir. 2013).

5

B.

Section I 983

Section 1983 of Tile 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. Deli!!, - U.S.
- , 132 S. Ct. 1657, !661, 182 L. Ed. 2d 662 (2012). Thus, to state a Section 1983 claim, a
plaintiff must allege: (1) 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. Callao, 13 F.3d 545, 547 (2d Cir. 1994)); see also
Rehberg v. Paulk,- U.S.-, 132 S. Ct. 1497, 1501-02, 182 L. Ed. 2d 593 (2012).

I.

Claims against Sheriff Sposato

A Section I 983 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. Citv 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

6

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. "The
fact that [a defendant] was in a high position of authority is an insufficient basis for the
imposition of personal liability." Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.
1989) (quotations and citation omitted); see also Back v. Hastings on Hudson Union Free School
District, 365 F.3d 107, 127 (2d Cir. 2004). A complaint based upon a violation under Section
1983 that does not allege facts establishing the personal involvement of an individual defendant
fails as a matter of law. See Costello v. Citv of Burlington, 632 F .3d 41, 48-9 (2d Cir. 2011 ).
Plaintiff has not alleged the direct participation of Sheriff Sposato in any of the
wrongdoing alleged in his complaint, nor any basis upon which to find Sheriff Sposato liable in a
supervisory capacity. Accordingly, plaintiffs Section 1983 claims against Sheriff Sposato are
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim
for relief. Since a party shall be given leave to amend "when justice so requires," Fed. R. Civ.
Pro. 15(a)(2), and "(a] prose complaint should not be dismissed without the Court granting leave
to amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated," Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quotations,
brackets and citation omitted); see also Grullon, 720 F.3d at 139-40 (accord), plaintiff is granted
leave to replead her Section 1983 claims against Sheriff Sposato, provided she file an amended
complaint on or before March 3. 2014, or her Section 1983 claims against Sheriff Sposato
will be deemed dismissed with prejudice.

7

C.

Claim for Injunctive Relief

Plaintiffs claim seeking to have this Court order Sheriff Sposato "to transfer [her] to
Rikers Island for fear that all [NCCC] correction officers will retaliate against [her] for this
complaint

* * *," (Compl., ~ V), is moot.

"In order for a federal court to exercise its judicial

power, an actual case or controversy must exist at each stage of review and not only at the time
the complaint is filed." Mawhinney v. Henderson, 542 F.2d I, 2 (2d Cir. 1976); ~also
Already. LLC v. Nike. Inc.,- U.S.-, 133 S. Ct. 721, 726, 184 L. Ed. 2d 553 (2013). "[A]n
inmate's transfer from a prison facility generally moots claims for declaratory and injunctive
relief against officials of that facility." Salahuddin v. Goord, 467 F.3d 263,272 (2d Cir. 2006);
see also Shepherd v. Goord, 662 F.3d 603, 610 (2d Cir. 2011) (accord); Mawhinney, 542 F.2d at
2 ("In view of the fact that appellant is no longer incarcerated at Auburn [Correctional Facility],
his request for an injunction restraining the officials at Auburn from violating his civil rights is
moot." (footnote omitted)). Since plaintiff was released from the NCCC in or around December
2013, her claim seeking to be transferred to Rikers Island is dismissed as moot.

D.

Claim for Suspension of Remaining Defendants

Plaintiffs claim seeking to have all of the remaining defendants suspended without pay
for a period of thirty (30) days involves a matter of internal prison administration with which this
Court will not interfere. The Supreme Court has held that:
"[p]rison administration is * * * a task that has been committed to the
responsibility of [the legislative and executive] branches [of government], and
separation of powers concerns counsel a policy of judicial restraint. Where a state
penal system is involved, federal courts have * * * additional reason to accord
deference to the appropriate prison authorities."
8

Turner v. Safley. 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 59 (1981); see also Johnson v.
Avery, 393 U.S. 483, 486, 89 S. Ct. 747, 21 L. Ed. 2d (1969) ("[D]iscipline and administration of
state detention facilities are state functions

* * * subject to federal authority only where

paramount federal constitutional or statutory rights supervene.") Accordingly, plaintiff's claim
seeking to have all of the remaining defendants suspended for a period of thirty (30) days is
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim
for relief. Since leave to amend is not required, inter alia, where a proposed amendment would
be futile, see Grullon, 720 F.3d at 140; Anderson News, 680 F.3d at 185, i.e., when the
"amended complaint would not contain enough allegations of fact to state a claim for relief that
is plausible on its face," MetLife Investors USA Ins. Co. v. Zeidman, 734 F. Supp. 2d 304, 311
(E.D.N.Y. 2010), aff'd, 442 Fed. Appx. 589 (2d Cir. Sept. 19, 2011) (quotations and citation
omitted); see also Perfect Pearl Co .. Inc. v. Majestic Pearl & Stone. Inc., 889 F. Supp. 2d 453,
459 (S.D.N.Y. 2012), plaintiff's claim seeking to have all ofthe remaining defendants suspended
for a period of thirty (30) days is dismissed with prejudice.

IV.

Conclusion
For the reasons set forth above, plaintiff's application to proceed in forma pauperis is

granted; plaintiff's claim seeking to have all defendants suspended without pay for a period of
thirty (30) days is sua sponte dismissed as moot; plaintiff's claim seeking to be transferred to
Rikers Island is sua sponte dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l) for failure to state a claim for relief; plaintiff's Section 1983 claims against
Sheriff Sposato are sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
9

•

1915A(b)(!) for failure to state a claim for relief; and plaintiff is granted leave to amend her
complaint in accordance with this Order, provided she file such amended complaint on or
before March 3. 2014. 3

The Clerk of the Court shall: (I) forward copies of the summonses, the complaint, this
Memorandum and Order and the Notice of Hearing dated January 28, 2014 to the United States
Marshal Service for service upon the remaining defendants forthwith; and, (2) pursuant to Rule
77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this order upon plaintiff
in accordance with Rule 5(b) of the Federal Rules of Civil Procedure.
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/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge

January 30, 2014
Central Islip, New York

Dated:

3

For the sake of clarity, only plaintiffs claims seeking damages against Sgt. Morrone,
Cpl. O'hea and C.O. Gross remain.
10