Jasmin v. Nassau County Sheriff Dept. et al

Filing 7

MEMORANDUM & ORDER re: 2 Motion for Leave to Proceed in forma pauperis is GRANTED, however, the Complaint is sua sponte DISMISSED WITH PREJUDICE as against the Jail and WITHOUT PREJUDICE as against Sheriff Sposato and the Superintendent. The Jail, Sheriff Sposato, and the Superintendent are TERMINATED from this action. Plaintiff's claims against Kotch shall proceed and the Court ORDERS service of the Summons and Complaint and this Order upon this Defendant by the USMS. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for the purpose of any appeal. Ordered by Judge Joanna Seybert on 5/29/2014. (C/M Plaintiff with Westlaw Case 2010 WL 3748743) (Nohs, Bonnie) Modified on 5/29/2014 (Valle, Christine).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MARC JASMIN,
Plaintiff,

MEMORANDUM & ORDER
14-CV-1671(JS)(ARL)

-againstNASSAU COUNTY SHERIFF DEPT.;
SHERIFF SPOSA [sic], individually
and in his official capacity;
JOHN DOE, Superintendent of Nassau
County Jail; and Corpral [sic]
Kotch, Shield 336,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Marc Jasmin, pro se
130006005
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearances.

SEYBERT, District Judge:
On March 7, 2014, incarcerated pro se plaintiff Marc
Jasmin (“Plaintiff”) filed a Complaint in this Court pursuant to 42
U.S.C. § 1983 (“Section 1983”) against the Nassau County Sheriff’s
Department (“the Sheriff’s Department”), Nassau County Sheriff
Michael Sposato, Corporal Kotch, Shield No. 336 (“Cpl. Kotch”) and
“John Doe” the Superintendent of the Nassau County Correctional
Center

(“Superintendent”

and

collectively

“Defendants”),

accompanied by an application to proceed in forma pauperis.
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment

of

the

filing

fee.

See

28

U.S.C.

§§

1914(a);

1915(a)(1).

Therefore, Plaintiff’s request to proceed in forma pauperis is
GRANTED.

However, for the reasons that follow, the Complaint is

sua sponte DISMISSED WITH PREJUDICE as against the Sheriff’s
Department and WITHOUT PREJUDICE as against Sheriff Sposato and the
Superintendent
1915A(b)(1).

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B)(ii),

Plaintiff’s Section 1983 claim against Cpl. Kotch

shall proceed.
BACKGROUND1
Plaintiff’s brief, handwritten Complaint, submitted on
the Court’s Section 1983 complaint form, alleges that Plaintiff has
been harassed by Cpl. Kotch during Plaintiff’s incarceration at the
Nassau

County

Jail.

Plaintiff

claims

to

have

“received

10

disciplinary reports (tickets) in less than two weeks with no
knowledge of getting written up.”

(Compl. ¶ IV.)

Beginning on October 12, 2013, Plaintiff recounts a
series

of

incidents

wherein

Cpl.

Kotch

is

alleged

to

have

threatened Plaintiff, called him names and racial slurs, and to
have had the Plaintiff written up when Plaintiff claims to have
done nothing wrong.
December

22,

2013,

For example, Plaintiff describes that, on
Cpl.

Kotch

asked

Plaintiff

to

show

him

Plaintiff’s identification card on Plaintiff’s way to church and

1

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

Plaintiff claims to have complied. Notwithstanding his compliance,
Plaintiff claims that another corrections officer brought Plaintiff
a ticket for Plaintiff to sign that said Plaintiff ignored Cpl.
Kotch’s request and did not show his identification card.
¶ IV.)

(Compl.

Plaintiff claims that Cpl. Kotch “restricted all my

movements” for two weeks and restricted Plaintiff’s access to
church for 30 days.

(Compl. ¶ IV.)

Plaintiff also alleges that

Cpl. Kotch had the log books altered to reflect that Plaintiff had
time out of his cell when in fact he has been denied “[his] right
to mandatory 2 hours out [of] my cell” and was locked in for 48
hours.

(Compl. ¶ IV; Compl. at 4.)
Plaintiff also describes that, on February 12, 2014,

there was an announcement on the loudspeaker to “lock in” and when
Plaintiff got to his cell the door closed before Plaintiff entered.
Plaintiff claims that the door then opened a little bit and then
shut several times, taunting Plaintiff.
eventually

entered

his

cell,

but

(Compl. at 4.)

was

later

disciplinary hearing with “miss[ing] my gate.”

Plaintiff

charged

in

a

(Compl. at 4.)

As a result of the foregoing, Plaintiff claims to “fear
for his life, safety and mental health and well being.”
IV.A.)

(Compl. ¶

Plaintiff seeks to recover an unspecified sum of monetary

damages as well as unspecified injunctive relief.

3

(Compl. ¶ V.)

DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified 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
granted, or seeks monetary relief against a defendant who is immune
from

such

1915A(b).

relief.

See

28

U.S.C.

§§

1915(e)(2)(B)(i)-(iii),

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
4

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

Iqbal, 556 U.S.

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

III.

Section 1983
Section 1983 provides that
[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)).
5

A.

Claim Against the 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);
see also Hawkins v. Nassau Cnty. Corr. Fac., 781 F. Supp. 2d 107,
109 at n.1 (E.D.N.Y. 2011) (dismissing claims against Nassau County
Jail because it is an “administrative arm[] . . . of the County of
Nassau, and thus lacks the capacity to be sued as a separate
entity”)

(internal

quotation

marks

and

citations

omitted);

Melendez v. Nassau Cnty., 10–CV–2516, 2010 WL 3748743, at *5
(E.D.N.Y. Sept. 17, 2010) (dismissing the claims against Nassau
County Sheriff’s Department because it lacks the capacity to be
sued).

Thus, Plaintiff’s claim against the Sheriff’s Department

is not plausible because the Sheriff’s Department has no legal
identity separate and apart from Nassau County.

Accordingly, this

claim is DISMISSED WITH PREJUDICE.
B.

Claims Against Sheriff Sposato and the Superintendent
In order to state a claim for relief under Section 1983

against an individual defendant, a plaintiff must allege the
personal involvement of the defendant in the alleged constitutional
deprivation.

Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).

The

Supreme Court held in Iqbal that “[b]ecause vicarious liability is
6

inapplicable to . . . § 1983 suits, . . . [a plaintiff] must plead
that each Government-official defendant, through [the official’s]
own individual actions, has violated the Constitution.”
at 676.

556 U.S.

Thus, a plaintiff asserting a Section 1983 claim against

a supervisory official in his individual capacity must sufficiently
plead

that

the

supervisor

was

constitutional deprivation.

personally

involved

in

the

Rivera v. Fischer, 655 F. Supp. 2d

235, 237 (W.D.N.Y. 2009). 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, 201 (2d Cir. 2010).
As is readily apparent, Plaintiff’s Complaint does not
include any factual allegations sufficient to demonstrate any
personal

involvement

by

either

Sheriff

Sposato

or

the

Superintendent, and it appears Plaintiff seeks to impose liability
simply because of the supervisory positions they hold.

Indeed,

neither of these Defendants are mentioned in the body of the
Complaint and there are no allegations of action or inaction
attributable to either of them.

Consequently, the Section 1983

claims asserted against Sheriff Sposato and the Superintendent are
not plausible and are DISMISSED WITHOUT PREJUDICE.
C.
Though

Claims Against Cpl. Kotch
thin,

the

Court

declines

to

sua

sponte

dismiss

Plaintiff’s claims against Cpl. Kotch at this early stage in the
7

proceedings.

Accordingly, the Court ORDERS service of the Summons

and Complaint upon Cpl. Kotch by the United States Marshals Service
(“USMS”) forthwith.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE as against the Jail and WITHOUT
PREJUDICE as against Sheriff Sposato and the Superintendent for
failure

to

state

a

claim

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B)(ii), 1915A(b)(1).
Plaintiff’s claims against Cpl. Kotch shall proceed and
the Court ORDERS service of the Summons and Complaint and a copy of
this Order upon this Defendant by the USMS.
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).
The Clerk of the Court is further directed to mail a copy
of this Memorandum and Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.

Dated: May
29 , 2014
Central Islip, New York
8