McAvoy v. Demarco et al

Filing 7

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiff's application to proceed in forma pauperis is granted; plaintiff's Section 1983 claims against the Jail are sua sponte dismissed with prejudice pur suant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l); and plaintiff's Section 1983 claims against Sheriff DeMarco, and as construed to be against the County, are sua sponte dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l), unless plaintiff files an amended complaint in accordance with this Order on or before May 18, 2015. The amended complaint must be captioned as an "Amended Complaint" and bear the same docket number as th is order. The Clerk of the Court is directed to serve copies of the complaint and this order on the Suffolk County Attorney, who shall attempt to ascertain the full names and service address(es) of the "John Doe" defts described in the comp laint and provide that information to the Court and plaintiff within thirty (30) days from the date that this Order is served upon him. Once the information is provided to the Court by the Suffolk County Attorney, plaintiff's complaint shall be deemed amended to reflect the full names of the "John Doe" defts; summonses shall be issued as to those defts; and the USMS shall serve the summonses, the complaint, this Order and the Notice of Hearing dated April 16, 2015 upon those defts . The Clerk of the Court shall serve notice of entry of this order upon plaintiff in accordance with Rule 5(b) of the Federal Rules of Civil Procedure. In addition, the Clerk of the Court shall serve a copy of the Notice of Hearing dated April 16, 20 15 upon plaintiff and record such service upon 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. CM with a copy of the complaint to the Suffolk County Attorney. Ordered by Judge Sandra J. Feuerstein on 4/16/2015. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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SHAWN K. MCAVOY,
Plaintiff,
ORDER
14-CV-6293(SJF)(AKT)

-againstSUFFOLK COUNTY SHERIFF DEMARCO, SUFFOLK
COUNTY CORRECTIONAL FACILITY, and
"SEVERAL [SUFFOLK COUNTY] SHERRIFFS [sic]
DEPUTIES in full/individual capacity,"
Defendants.

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FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N y

*

APR 1 6 2015

LONG ISLAND OFFICE

FEUERSTEIN, J.
On October 22, 2014, incarcerated prose plaintiff Shawn K. McAvoy ("plaintiff') filed a
complaint in this Court against Suffolk County Sheriff DeMarco ("Sheriff DeMarco"), Suffolk
County Correctional Facility ("SCCF" or "the Jail") and "Several [Suffolk County] Sherriffs
[sic] Deputies in full/individual capacity'' (collectively, "defendants"), accompanied by an
application to proceed in forma pauperis. Since plaintiff's financial status, as set forth in his
declaration in support of the application to proceed in forma pauperis, qualifies him to
commence this action without prepayment of the filing fee. See 28 U.S. C.§§ 1914(a);
1915(a)(1), plaintiffs application to proceed in forma pauperis is granted. However, for the
reasons set forth below, plaintiffs Section 1983 claims against Sheriff DeMarco, the Jail and as
construed to be against the County of Suffolk ("the County'') are sua sponte dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief.

L

The Complaint 1

1

All material allegations in the complaint are assumed to be true for the purposes of this
Rogers v. City of Troy, N.Y., 148 F. 3d 52, 58 (2d Cir. 1998) (in reviewing a pro

order,~.~.

*

Plaintiff alleges that on September 8, 2014, while he "was in the Sheriffs [sic] holding
area in cell 6 waiting to be driven to court[,] [he] and another inmate were in a confrontation[,]"
(Compl. at 'If IV.), and ''without being told to stop or freeze, the cell door cracked open and the
sheriff's deputies came rushing in[,] grabbed only [him][,]
wall face first

* * * [and] then threw [him] into the

* * *[,]"causing him to sustain a bruise on his forehead and a broken nose.

(ld.)

Plaintiff further alleges: (1) that he was then "slammed into a bench with a great deal of pressure
applied to [his] face[,]" (id.); (2) that "[a]t this point both hands were behind [his] back with no
resistance[,]" (id.); (3) that "[e]ven though [he] was not resisting and restrained, the deputies
picked [him] up and carried [him] over to a drain accross [sic] the cell[,]
socket directly on the center of the drain[,]

* * *placed [his] eye

* * * [and] kneed [him] in the back of the head,"

causing him to sustain "lacerations around [his] eye socket and significant bruising behind [his]
left ear and [his] sknll[,]" (id.); and (4) that the deputies also (a) twisted [his] arm to the point
that [he] [could] not feel half [his] hand[,] * * * apply pressure, perform certain movements or
close [his hand] fully[,]" (id.), (b) cuffed [him] behind [his] back with [his] right arm twisted and
placed in a very painful position[,]" (id.); and (c) "placed [him] in a cell by [him]selfwhere [he]
fell unconcious [sic] with both of [his] hands behind [his] back[,] slamming the right side of [his]
head." (Id.) According to plaintiff, approximately twenty-five (25) to thirty (30) minutes later,
he was taken to Peconic Bay Medical Center, where x-rays and MRls were performed and a
doctor told him that his nose was broken and his hand was sprained and administered medication
to him. (Id.) In addition to the bruising on his forehead, eyes, left ear and left side of his head;
broken nose; and sprained right hand, plaintiff claims (1) that he "has pain in [his] forearm

se complaint for sua sponte dismissal, a court is required to accept the material allegations in the
complaint as true), and do not constitute findings of fact by the Court.
2

running to [his] elbow when it [sic] closes the fist[,]" (Compl., ~ IV.A); and (2) that "(b]esides
the hospital treatment," he received no other medical treatment at the Jail and "they will not
answer any request forms or grievance forms (he] ha(s] submitted." (Id.)
Plaintiff seeks to recover damages in the amount of three million dollars ($3,000,000.00)
and to have cameras "installed in the underground tunnel, the prisoner holding area at the Suffolk
Sheriff Deputy Station located under and or beside the County Court building." (Compl.

IT.

at~

V).

Discussion
A.

Standard of Review

Under both the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and the in forma

pauperis statute, 29 U.S.C. § 1915(e)(2), a district court must dismiss a complaint if it is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b) and
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 prisoner 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) (citation
omitted), and to construe them "to raise the strongest arguments that they suggest." Kirkland v.
Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (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. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d Ill, 124 (2d Cir. 2010), atrd- U.S.----, 133 S. Ct. 1659, 185 L. Ed.
2d 671 (2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868

3

(2009)); ~also Jackson v. Birmingham Bd. ofEduc., 544 U.S. 167, 171, 125 S. Ct. 1497, 161
L. Ed. 2d 361 (2005).
Nevertheless, a complaint must plead sufficient facts to "state a claim to relief that is
plausible on its face." Bell At!. Com. v. Twombly, 550 U.S. 544,570, 127 S. Ct. 1955, 1974, 167
L. Ed. 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, 129 S. Ct. 1937. "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, 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. 1937); accord Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87 (2d Cir. 2013).

B.

Section 1983

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." See,£:&:., 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 plaintifl] of rights, privileges,
or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592

4

F.3d 121, 127 (2d Cir. 2010) (citation omitted);~ also Rehberg v. Paulk,--- U.S.----, 132 S.
Ct. 1497, 1501-02, 182 L. Ed. 2d 593 (2012).

1.

Claims against the Jail

"'Under New York law, departments that are merely administrative arms of a
municipality do not have a legal identity separate and apart from the municipality and, therefore,
cannot sue or be sued."' Garcia v. Dutchess Cnty., 43 F. Supp. 3d 281,301 (S.D.N.Y. 2014)
(quoting Davis v. Lvnbrook Police Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002)); ~also
Robischung-Walsh v. Nassau Cnty. Police Dep't, 699 F. Supp. 2d 563, 565 (E.D.N.Y. 2010),
aff'd, 421 F. App'x 38 (2d Cir. 2011). Since the Jail is an administrative arm of the County, it
lacks the capacity to be sued.

See,~ Romanello

v. Suffolk Cnty. Corr. Facility, No. 14-cv-

5607, 2014 WL 6804257, at* 2 (E.D.N.Y. Dec. 3, 2014) (dismissing claims against the SCCF
because it "has no legal identity separate and apart from Suffolk County."); James v. Suffolk
Cnty. Corr. Facility, No. 13-cv-2344, 2013 WL 3189216, at* 3 (E.D.N.Y. June 20, 2013)
(holding that since the SCCF "is merely an administrative arm of Suffolk County without an
independent legal identity[,]* * * [it]lacks the capacity to be sued.") Accordingly, the claims
against the Jail are sua sponte dismissed in their entirety 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. However, since plaintiff
is proceeding prose, his Section 1983 claims against the Jail are construed as being brought
against the County.

2.

Municipal Liability

"[A] municipality can be held liable under Section 1983 if the deprivation of the
plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the
5

municipality." Jones v. Town of East Haven, 691 F.3d 72,80 (2d Cir. 2012), cert.

deni~

134 S.

Ct. 125, 187 L. Ed. 2d 255 (2013); accord Matusick v. Erie Co. Water Auth., 757 F.3d 31,62 (2d
Cir. 2014). "Absent such a custom, policy, or usage, a municipality cannot be held liable on a
respondeat superior basis for the tort of its employee." Jones, 691 F.3d at 80; see also Connick

v. Thompson,-U.S.-, 131 S.Ct.1350, 1359, 179L.Ed.2d417(2011)(holdingthatunder
Section 1983, governmental bodies are not vicariously liable for their employees' actions); Los
Angeles County, California v. Humphries, 562 U.S. 29, 131 S. Ct. 447,452, 178 L. Ed. 2d 460
(2010) ("[A] municipality cannot be held liable solely for the acts of others,~ solely because it
employs a tortfeasor." (emphasis in original) (quotations and citation omitted)); Monell v. Dep't
of Soc. Servs. ofCitv of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
To prevail on a Section 1983 claim against a municipal entity, a plaintiff must show: "(1) actions
taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4)
damages; and (5) that an official policy of the municipality caused the constitutional injury."
Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008); ~also Connick,- U.S.-, 131 S.
Ct. at 1359 ("Plaintiffs who seek to impose liability on local governments under Section 1983
must prove that 'action pursuant to official municipal policy' caused their injury." (quoting
Monell, 436 U.S. at 691, 98 S. Ct. 2018)); Humphries, 562 U.S. 29, 131 S. Ct. at 452 ("[A]
municipality may be held liable when execution of a government's policy or custom ... inflicts
the injury." (emphasis in original) (quotations and citation omitted)).
"A municipal policy may be pronounced or tacit and reflected in either action or
inaction." Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011). "Official municipal policy
includes the decisions of a government's lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force oflaw." Connick,- U.S.

6

- , 131 S.Ct. at 1359. In addition, municipal liability can be established "by showing that a
policymaking official ordered or ratified the employee's actions -either expressly or tacitly."
Jones, 691 F.3d at 81. "Thus, a plaintiff can prevail against a municipality by showing that the
policymaking official was aware of the employee's unconstitutional actions and consciously
chose to ignore them." Id. To establish such deliberate indifference, "a plaintiff must show that
a policymaking official was aware of constitutional injury, or the risk of constitutional injury, but
failed to take appropriate action to prevent or sanction violations of constitutional rights." Id.
"Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action[,]" Connick, -U.S. - , 131 S. Ct. at
1360 (quotations and citation omitted), and ''requires a showing that the official made a
conscious choice, and was not merely negligent." Jones, 691 F.3d at 81; see also Cash, 654 F.3d
at 334.
To state a claim for municipal liability under Section 1983, a plaintiff must allege more
than that a municipal policy or custom exists. Zahra v. Town of Southold, 48 F.3d 674,685 (2d
Cir. 1995) ("[T]he mere assertion that a municipality has * * * a custom or policy is insufficient
(to withstand dismissal] in the absence of allegations of fact tending to support, at least
circumstantially, such an inference *

* *."(quotations, alterations and citation omitted)); accord

Zherka v. City ofNew York, 459 F. App'x 10, 12 (2d Cir. Jan. 19, 2012) (summary order).
"Rather, a plaintiff must allege facts tending to support, at least circumstantially, an inference
that such a municipal policy or custom exists." Santos v. New York City, 847 F. Supp. 2d 573,
576 (S.D.N.Y. 2012); accord Triano v. Town of Harrison, N.Y., 895 F. Supp. 2d 526, 535
(S.D.N.Y. 2012).
The complaint is devoid of any factual allegations from which it may reasonably be

7

inferred that a municipal policy or custom caused the conduct of which plaintiff complains.
Plaintiff has not alleged, inter alia: (1) the existence of a formal policy which is officially
endorsed by the County or the Jail; (2) actions taken or decisions made by County or Jail
policymaking officials which caused the alleged violation of his civil rights; (3) a County or Jail
practice so persistent and widespread as to practically have the force oflaw; or (4) a failure by
County or Jail policymakers to properly train or supervise their subordinates, amounting to
"deliberate indifference" to the rights of those who come in contact with their employees. Since
the complaint fails to state a plausible Section 1983 claim against the County, plaintiff's Section
1983 claims as construed to be against the County are 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, unless on or
before May 18, 2015, plaintiff files an amended complaint re-pleading his Section 1983 claims
against the County to correct the deficiencies set forth herein.

3.

Claims Against Sheriff DeMarco

A Section 1983 claim must allege the personal involvement of any individual defendant
in the purported constitutional deprivation. See Raspardo v. Carlone, 770 F.3d 97, 115, 116 (2d
Cir. 20 14) ("If a defendant has not personally violated a plaintiff's constitutional rights, the
plaintiff cannot succeed on a§ 1983 action against th[at] defendant.

* * * § 1983 requires

individual, personalized liability on the part of each government defendant."); Spavone v. New
York State Dep't ofCorr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) ("[P]ersonal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §
1983." (quotations and citation omitted)). "Personal involvement" may be established by
evidence of direct participation in the challenged conduct, i.e., that the supervisory official

8

"commit[ted] the acts personally" or "authorize[d], order[ed], or help[ed] others to do the
unlawful acts," Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014), or by evidence of the
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." Havut v. State Univ. ofNew York, 352 F.3d 733, 753 (2d Cir. 2003); see also
Grullon v. Citv ofNew Haven, 720 F.3d 133, 139 (2d Cir. 2013). "In addition to satisfying one
ofth[o]se requirements, a plaintiff must also establish that the supervisor's actions were the
proximate cause of the plaintiff's constitutional deprivation." Raspardo, 770 F.3d at 116. "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); ~also Back v. Hastings on Hudson Union Free Sch. Dist., 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 oflaw. See
Costello v. City of Burlington, 632 F.3d 41, 48-9 (2d Cir. 2011).
Plaintiff has not alleged the direct participation of Sheriff DeMarco in any violation of his
constitutional rights, nor any basis upon which to find Sheriff DeMarco liable in a supervisory
capacity. Indeed, although plaintiff names Sheriff DeMarco as a defendant in the caption of his
complaint, he does not mention him anywhere in the body of the complaint. Since the complaint
fails to state a plausible Section 1983 claim against Sheriff DeMarco, plaintiff's Section 1983
claims against him are 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, unless on or before May 18. 2015, plaintiff

9

files an amended complaint re-pleading his Section 1983 claims against Sheriff DeMarco to
correct the deficiencies set forth herein.

4.

Claims Against the Unidentified Sheriff's Deputies

The United States Marshal Service ("USMS") will not be able to effect service of the
summonses and the complaint on the unnamed defendants without more information regarding
their identity. Since the Second Circnit has held that district courts must provide incarcerated

pro se litigants with reasonable assistance in investigating the identity of "John Doe" officers, ~
Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the Clerk of the Court shall serve
copies of the complaint and this order upon the Suffolk County Attorney, who shall attempt to
ascertain the full names and service address(es) of the "John Doe" defendants allegedly involved
in the incident described in the Complaint and provide such information to the Court and plaintiff
within thirty (30) days from the date that this Order is served upon him. Once the

information is provided to the Court by the Suffolk County Attorney, plaintiff's complaint shall
be deemed amended to reflect the full names of the "John Doe" defendants; summonses shall be
issued as to those defendants; and the USMS shall serve the summonses, the complaint, this
order and the Notice of Hearing dated April16, 2015 upon those defendants.

ill.

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

granted; plaintiff's Section 1983 claims against the Jail are sua sponte dismissed with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l); and plaintiff's Section 1983 claims
against Sheriff DeMarco, and as construed to be against the County, are sua sponte dismissed

10

with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l), unless plaintiff files
an amended complaint in accordance with this Order on or before May 18. 2015. The

amended complaint must be captioned as an "Amended Complaint" and bear the same docket
number as this order.
The Clerk of the Court is directed to serve copies of the complaint and this order on the
Suffolk County Attorney, who shall attempt to ascertain the full names and service address(es) of
the "John Doe" defendants described in the complaint and provide that information to the Court
and plaintiff within thirty (30) days from the date that this Order is served upon him. Once
the information is provided to the Court by the Suffolk County Attorney, plaintiff's complaint
shall be deemed amended to reflect the full names of the "John Doe" defendants; summonses
shall be issued as to those defendants; and the USMS shall serve the summonses, the complaint,
this Order and the Notice of Hearing dated Aprill6, 2015 upon those defendants.
Pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, the Clerkofthe Court
shall serve notice of entry of this order upon plaintiff in accordance with Rule 5(b) of the Federal
Rules of Civil Procedure. In addition, the Clerk of the Court shall serve a copy of the Notice of
Hearing dated April16, 2015 upon plaintiff and record such service upon 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. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).
SO ORDERED.

Is/
Sandra J. Feuerstein
United States District Judge
Dated: Aprill6, 2015
Central Islip, New York
11