McKenney v. DeMarco
ORDER: SO ORDERED that the amended complaint is sua sponte dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly and close this case. The Clerk of the Court is directed to serve notice of entry of this Order in accordan ce with Rule 77(d)(l) of the Federal Rules of Civil Procedure by mailing a copy of this Order to the pro se plaintiff at his last known address, see Fed. R. Civ. P. 5(b)(2)(c), and record such service on the docket. 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 11/14/2014. (Florio, Lisa)
IN CLERK'S OFFICE
U S DISTRICT COURT E D N Y
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NCV 1 4 2014
LONG ISLAND OFFICE
-againstVINCENT F. DEMARCO,
FEUERSTEIN, District Judge:
On December 20, 2013, incarcerated prose plaintiff Keith McKenney ("McKenney" or
"plaintiff') filed a complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") against Suffolk
County Sheriff Vincent F. DeMarco ("Sheriff DeMarco" or "defendant"). [Docket Entry No. 1
(the "Complaint")]. On April9, 2014, the Court dismissed plaintiffs in forma pauperis
complaint and granted plaintiff leave to file an amended complaint alleging a plausible claim
within thirty (30) days. [Docket Entry No.7]. On April24, 2014, plaintiff filed an unsigned,
single handwritten page entitled "Amended Complaint." [Docket Entry No. 8]. The Court's Pro
Se Office sent plaintiff a letter instructing plaintiff to sign and return the enclosed copy of his
amended complaint in order to proceed with his case. [Docket Entry No. 9]. In accordance with
the Court's letter, plaintiffre-filed a signed copy of the amended complaint. [Docket Entry No.
10 (the "Amended Complaint" or "Am. Compl.")].
For the reasons that follow, plaintiff has
failed to allege a plausible claim against the defendant. Accordingly, the Amended Complaint is
The Amended Complaint alleges the following, in its entirety:
On 8/26/13 two "John Doe" correction officers who work for Vincent F.
DeMarco in the Riverhead jail violated my 8th Amendment rights. They told the
other inmates in 3 South where I was incarcerated about my crimes. I was
victimized and taken advantage of by other inmates. The inmates stole my food
and harassed me. Later, while imprisoned in the Yapank [sic] jail [indeciperable]
and South 2 the harassment and extortion continued. I was a sentenced prisoner
being held with non/sentenced inmates who wanted to hurt me. An inmate who I
was incarcerated with in Riverhead was imprisoned with me in Yapahnk [sic]. He
told the other inmates of my crimes and the harassment and extortion continued.
If it wasn't for these 2 correction officer[s] telling the inmates of my crimes, these
terrible things never would have happened. I was scared for my life, I did not
sleep well and I suffered mental anguish. I seek to recover 2 million dollars.
See Am. Compl. at I.
Standard of Review
Under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), 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. 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) (citations omitted), and to construe
them "to raise the strongest arguments that they suggest." Gerstenbluth v. Credit Suisse
Securities (USA) LLC, 728 F.3d 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 wellpleaded, nonconclusory factual allegations in the complaint." Harrington v. Cnty. 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 At!. Corp. 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, 55! U.S. at 93 (quotations and citation omitted); see also Anderson News, LLC v.
American Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied by Curtis Circulation Co.
v. Anderson News, LLC, ---U.S.----, 133 S. Ct. 846, 184 L. Ed. 2d 655 (2013) (accord).
However, "[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). "Nor does a complaint suffice if it tenders 'naked assertion[s]'
devoid of'further factual enhancement."' Id (quoting Twombly, 550 U.S. at 557); see also
Pension Benefit Guaranty Corp. 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; see also In re Amaranth Natural Gas Commodities
Litig., 730 F.3d 170, 180 (2d Cir. 2013).
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. Delia, --- U.S. ---, 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
Rehbergv. Paulk,--- U.S.----, 132 S. Ct. 1497,1501-02, 182 L. Ed. 2d 593 (2012). Section
1983 does not create any independent substantive right; but rather is a vehicle to "redress ... the
deprivation of [federal] rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d
To state a claim for relief under Section 1983, a plaintiff must allege the personal
involvement of a defendant in the purported constitutional deprivation. Farid v. Ellen, 593 F.3d
233,249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d 470,484 (2d Cir.2006)). "Personal
involvement" may be established by evidence of direct participation by a supervisor in the
challenged conduct, or by evidence of a supervisory official's "(!)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." Hayutv. State Univ. ofNew York, 352 F.3d
733, 753 (2d Cir. 2003). "An individual cannot be held liable for damages under Section 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. 1996)). 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. See Johnson v. Barney, 360 F.
App'x 199 (2d Cir. 2010).
Plaintiff names Sheriff DeMarco as a sole defendant in the amended complaint.
However, plaintiff does not include any allegations of conduct attributable to Sheriff DeMarco;
rather he complains of conduct by unidentified corrections officers "who work for" Sheriff
DeMarco. Am. Compl. at 1. Thus, plaintiff has not adequately pled the personal involvement of
Sheriff DeMarco and seeks to impose liability merely because of the supervisory position he
holds. Because plaintiff has not alleged a plausible claim for relief against Sheriff DeMarco, the
complaint is dismissed.
Federal Rules of Civil Procedure 8 and 10
Plaintiffs submission also fails to comply with Rule 8 and Rule 10 of the Federal Rules
of Civil Procedure. Federal Rule of Civil Procedure I 0 requires that "[e]very pleading must have
a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of
the complaint [or amended complaint] must name all the parties .... " Fed. R. Civ. P. 10.
Federal Rule of Civil Procedure 8 provides that "[a] pleading that states a claim for relief must
contain: (I) a short and plain statement of the grounds for the court's jurisdiction; (2) a short and
plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for
the relief sought." Fed. R. Civ. P. 8.
Plaintiffs submission does not have a caption; rather, it begins: "AMENDED
COMPLAINT ORDER: 13-CV-7270(SJF)(AKT)" and then reads "Keith McKenney vs. Vincent
F. DeMarco." Am. Compl. at I. Nor does plaintiff's submission include include "a short and
plain statement of the grounds for the court's jurisdiction" (Fed. R. Civ. P. 8) or "short and plain
statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8), but
merely demands recovery of "2 million dollars" (Am. Compl. at I) for a host of grievances, and,
as explained supra, fails to allege a plausible claim for relief against the sole defendant, Sheriff
Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party shall be given
leave to amend "when justice so requires." Fed. R. Civ. P. 15(a). When addressing a prose
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 411,419 (2d Cir. 2002) (citing Branum v. Clark, 927 F.2d 698,
705 (2d Cir. 1991)). Nevertheless, "[!]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 ofNew
York, 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)). Where an amendment would be futile, i.e., if it could not withstand a
motion to dismiss pursuant to Rule 12(b)(6), leave to amend may be denied. See Lucente v. Int 'I
Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002).
Construing the plaintiffs complaint liberally, and interpreting it as raising the strongest
arguments it suggests, Burgos v. Hopkins, 14 F.3d 787,780 (2d Cir. 1994), the Court finds that
plaintiffs allegations do not rise to the level of a constitutional deprivation. Not "every injury
suffered by one prisoner at the hands of another ... translates into constitutional liability for prison
officials" at a facility. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d
811 (1994). A "prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference." Farmer, 511 U.S. at 837. Thus, "the failure to protect an inmate only violates the
constitution when prison officials act with 'deliberate indifference."' Parris v. New York State
Dep'tofCorr. Svcs., 947 F. Supp. 2d 354,362 (S.D.N.Y. 2013) (citations omitted).
To establish that a prison official's actions rise to the level of deliberate indifference: (1)
"the deprivation alleged must be, objectively, sufficiently serious," and (2) "a prison official
must have acted or failed to act with a sufficiently culpable state of mind." Farmer, 511 U.S. at
834 (internal quotation marks and citations omitted); see also Hayes v. N. Y City Dep 't ofCorr.,
84 F.3d 614, 620 (2d Cir. 1996) ("to state a cognizable section 1983 claim, the prisoner must
allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence
will not suffice"). The Second Circuit has set forth a two-part test for deliberate indifference:
First, the plaintiff must demonstrate that he is incarcerated under conditions
posing a substantial risk of serious harm. Second, the plaintiff must demonstrate
that the defendant prison officials possessed sufficient culpable intent. The second
prong of the deliberate indifference test, culpable intent, in tum, involves a twotier inquiry. Specifically, a prison official has sufficient culpable intent if he has
knowledge that an inmate faces a substantial risk of serious harm and he
disregards that risk by failing to take reasonable measures to abate the harm.
Hayes, 84 F.3d at 620. A prison official has sufficient culpable intent only where he "acted or
failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at
Here, the amended complaint does not allege any facts to support a reasonable inference
that the defendant knew of and disregarded an excessive risk to plaintiff's safety. Indeed,
plaintiff alleges only that other "inmates stole my food" (Am. Compl. at 1) and "harassed me"
(!d.) and provides no facts from which a reasonable inference may be drawn that the defendant
was aware of these circumstances or that the other inmates' conduct posed a threat to plaintiff's
safety. Thus, plaintiff has not alleged a plausible failure to protect claim. See Hayes, 84 FJd at
621 (noting that prisoner asserting failure to protect claim must prove that defendant officers had
"the requisite knowledge ofrisk to [plaintiffs] safety" and failed to take "reasonable measures to
abate the risk of harm"). Accordingly, plaintiff has not alleged a plausible failure to protect
claim in his amended complaint and the Court declines to afford plaintiff another opportunity to
further amend his complaint.
For the foregoing reasons, the amended complaint does not allege a plausible Section
1983 claim against the defendant. Accordingly, the amended complaint is sua sponte dismissed
with prejudice and the Clerk of the Court shall enter judgment accordingly and close this case.
The Clerk of the Court is directed to serve notice of entry of this Order in accordance
with Rule 77(d)(l) of the Federal Rules of Civil Procedure by mailing a copy of this Order to the
prose plaintiff at his last known address, see Fed. R. Civ. P. 5(b)(2)(c), and record such service
on the docket. 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 ofany appeal. See Coppedge v. United States, 369 U.S. 438,444-45, 82 S. Ct. 917,8 L.
Ed. 2d 21 (1962).
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: November 14,2014
Central Islip, New York
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