Harris v. Sposato
OPINION & ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiffs application to proceed in forma pauperis is granted and the Complaint is sua sponte dismissed in its entirety with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). The Clerk of the Court shall, pursuant to Rule 77(d)(1) 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. CM to pro se. Ordered by Judge Sandra J. Feuerstein on 4/14/2015. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KALIEKE HARRIS, 14003190,
OPINION & ORDER
FEUERSTEIN, District Judge:
4/14/2015 3:52 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
On January 20, 2015, incarcerated pro se plaintiff Kalieke Harris (“plaintiff”) filed a
complaint in this Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the Nassau
County Sheriff Michael Sposato (“defendant” or “Sposato”) [Docket Entry No. 1 (“Complaint”
or “Compl.”)], accompanied by an application to proceed in forma pauperis. [Docket Entry No.
Upon review of the declaration in support of the application to proceed in forma
pauperis, the Court finds that plaintiff’s financial status qualifies him 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 for failure to state a claim for relief pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
All material allegations in the complaint are assumed to be true for the purposes of this Order. See,
e.g., Rogers v. City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a pro se complaint for
sua sponte dismissal, a court is required to accept the material allegations in the complaint as true).
Plaintiff’s Complaint, submitted on the Court’s Section 1983 form, alleges the following
in its entirety: 2
On December 9, 2014 during lunch feeding I was talking to another
inmate when they shook the gates for us to lock in. I ran to catch
my gate because we have about 30 seconds to catch it. I slipped on
a puddle on the bottom tier. The puddle came from a leak in the
ceiling. I landed on my back and hit my elbow on a stool. My back
and elbow was [sic] in serious pain and I couldn’t get up on my own.
C.O. Merchant badge # 2505 and C.O. Santiago badge # 2357 was
talking [sic] to while waiting for medical to come. C.O. Merchant
filled out the injury report. After a while medical staff arrived and
helped me into a wheelchair. They took me to medical and they
examined my back and elbow. After they gave me medication and
sent me back to my housing area.
Compl. ¶ IV. Plaintiff claims to suffer “severe back pains” when he is sleeping, standing up and
sitting down, and requests an MRI exam and physical therapy. Id. ¶ IV.A. For relief, plaintiff
seeks to recover unspecified monetary damages for his “pain and suffering.” Id. ¶ V.
In Forma Pauperis Application
Upon review of plaintiff’s declaration in support of his application to proceed in forma
pauperis, the Court finds 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.
Application of 28 U.S.C. § 1915
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
Excerpts from plaintiff’s Complaint are reproduced here exactly as they appear in the Complaint.
granted or seeks monetary relief from a defendant who is immune from such relief. It is
axiomatic that district courts are required to read a pro se complaint liberally (Erickson v.
Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citations omitted)), and
construe it “to raise the strongest arguments” suggested. 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 well-pleaded,
nonconclusory factual allegations in the complaint.” Harrington v. Cnty. 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 Atl. 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, 551 U.S. at 93 (quotations and citation omitted); see also Anderson News, LLC v. Am.
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.’” Iqbal, 556 U.S. at 678 (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 Guar. Corp. ex
rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. 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.” Iqbal, 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 Title 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, e.g., Filarsky v. Delia,
--- U.S. ----, 132 S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012). 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) (citation omitted); see also Rehberg v. 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 Cir. 1999).
Moreover, in order to state a claim for relief under Section 1983, 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 “(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.” Hayut v. State Univ. of New York, 352 F.3d
733, 753 (2d Cir. 2003). 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) (summary order).
Although plaintiff names Nassau County Sheriff Michael Sposato as the sole defendant,
plaintiff does not allege any conduct or inaction attributable to him; apart from the caption,
Sheriff Sposato is not mentioned in the Complaint. Plaintiff apparently seeks to impose liability
on Sheriff Sposato solely because of the supervisory position he holds. As set forth above, a
plausible Section 1983 claim requires allegations of personal involvement of the defendant in the
constitutional deprivation claimed by plaintiff. See supra at 4-5. A plaintiff asserting a Section
1983 claim against a supervisory official in his individual capacity must sufficiently plead that
the supervisor was personally involved in the constitutional deprivation. See Rivera v. Fischer,
655 F. Supp. 2d 235, 237 (W.D.N.Y. 2009); see also Warren v. Goord, 476 F. Supp. 2d 407, 413
(S.D.N.Y. 2007), aff’d, 368 F. App’x 161 (2d Cir. 2010) (“It is well settled in this Circuit that
‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.’”) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)). A supervisor cannot be liable for damage under Section 1983 solely by virtue of being a
supervisor because there is no respondeat superior liability under Section 1983. Richardson v.
Goord, 347 F.3d 431, 435 (2d Cir. 2003). Despite a liberal reading, plaintiff has not alleged a
plausible Section 1983 claim against Sheriff Sposato. Accordingly, the Complaint is sua sponte
dismissed for failure to state a claim for relief 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Leave to Amend
A district court should not dismiss a pro se complaint 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.” Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (citing Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Here, even if plaintiff had named a defendant
personally involved in the challenged conduct, plaintiff’s claim does not rise to the level of a
constitutional deprivation as plaintiff’s claim that he slipped on water on the floor and fell
amounts to, at best, a negligence claim. See Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.
Ct. 662, 88 L. Ed. 2d 662 (1986) (negligence claims do not rise to the level of a constitutional
violation); Nunez v. Sposato, No. 12-civ-3919, 2012 WL 3619501, *3 (E.D.N.Y. Aug. 17, 2012)
(“[I]t is clear that [plaintiff’s] claim does not implicate a constitutional deprivation [since]
[p]laintiff claims nothing more than that he slipped on water on the floor in the shower and
fell”); Carr v. Canty, No. 10-civ-3829, 2011 WL 309667, *2 (S.D.N.Y. Jan. 19, 2011) (“[C]ourts
have held that allegations of wet conditions leading to a slip-and-fall will not support a Section
1983 claim even where . . . the plaintiff [ ] alleges that the individual defendants had notice of the
wet condition but failed to address it”) (internal quotation marks and citation omitted)); Jennings
v. Horn, No. 05-civ-9435, 2007 WL 2265574, at *5 (S.D.N.Y. Aug. 7, 2007) (“[S]lippery prison
floors, at best, pose a claim of negligence, which is not actionable under the United States
Constitution.”); Powers v. Gipson, No. 04-civ-6883L, 2004 WL 2123490, at *2 (W.D.N.Y. Sept.
14, 2004) (sua sponte dismissing in forma pauperis complaint pursuant to 28 U .S.C. §§
1915(e)(2)(B) and 1915A, explaining that “[t]he claim that defendants were negligent in failing
to clean up the water that caused plaintiff to slip, without more, fails to provide him with a basis
for a federal claim, since mere negligence on the part of state officials is not actionable under §
1983”); Nauden v. Maha, No. 04-civ-0171SC, 2004 WL 1145916, *1 (W.D.N.Y. Apr. 7, 2004)
(sua sponte dismissing in forma pauperis complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A because “[i]t is abundantly clear to the Court that plaintiff is alleging nothing more than a
claim of negligence against the defendants for their alleged creation of a dangerous condition
which caused him to slip and fall.”). Accordingly, because the deficiency in plaintiff’s claim is
substantive and would not be cured in an amended complaint, leave to amend the Complaint is
Having dismissed plaintiff’s federal claim, the Court declines to assert supplemental
jurisdiction over plaintiff’s state law negligence claim; plaintiff may pursue such claim in state
court. See Castellano v. Bd. of Trustees, 937 F.2d 752, 758 (2d Cir. 1991) (“[I]f the federal
claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well”); Nauden, 2004 WL 1145916, at *1 (“Plaintiff’s avenue for
relief for his claims of negligence is state court, not a claim in federal court under 42 U.S.C. §
For the reasons set forth above, plaintiff’s application to proceed in forma pauperis is
granted and the Complaint is sua sponte dismissed in its entirety with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). The Clerk of the Court shall, pursuant to Rule 77(d)(1)
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
s/ Sandra J. Feuerstein_____
Sandra J. Feuerstein
United States District Judge
April 14, 2015
Central Islip, New York
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