Campbell v. Sposato et al

Filing 8

CONSOLIDATION ORDER: Granting (2) Motion for Leave to Proceed in forma pauperis in case 2:15-cv-01958-JFB-SIL. Granting (2) Motion for Leave to Proceed in forma pauperis in case 2:15-cv-03198-JFB-SIL. The first and second complaints are consolidate d into plaintiffs first-filed case, 15-1958. The Clerk of Court is directed to mark the second case (15-CV -3198) closed and all future filings are to be docketed in 15-CV-1598. The Clerk of Court is further directed to forward copies of the summons, the complaint and this order to the United States Marshal Service for service upon the defendants other than the Nassau County Attorney forthwith and to mail a copy of this Order to plaintiff at his last known address. The Court certifies pursuant t o 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). Ordered by Judge Joseph F. Bianco on 6/8/2015. cm/ecf. cm by chambers to pro se plaintiff by fcm on 6/8/15. (Bollbach, Jean)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

JUN oS 2015

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MALACHI CAMPBELL, #13002952,

:

Plaintiff,
ORDER
15-CV-1958 (JFB) (SIL)

-againstMICHEAL [SIC] J. SPOSATO, SHERIFF, CPL. MR. C,
NASSAU COUNTY CORRECTIONAL FACILITY
'
NASSAU COUNTY ATTORNEY,
Defendants.

---------------------------------------------------------------------------------)(

MALACHI CAMPBELL, #13002952,

Plaintiff,
-against-

15-CV-3198 (JFB) (SIL)

MICHEAL [SIC] J. SPOSATO, SHERIFF, CPL. MR. C,
NASSAU COUNTY CORRECTIONAL FACILITY,
NASSAU COUNTY ATTORNEY,
Defendants.

---------------------------------------------------------------------------------)(
JOSEPH F. BIANCO, District Judge:
On April6, 2015, incarcerated prose Malachi Campbell ("plaintiff') filed an in forma
pauperis civil rights complaint against Micheal [sic] J. Sposato, Sheriff, Cpl. "Mr. C"; the
Nassau County Correctional Facility; and the Nassau County Attorney (collectively,
"defendants") pursuant to 42 U.S.C. § 1983 ("Section 1983"). That complaint was assigned
docket number 15-1958. On May 21,2015, plaintiffre-filed the complaint and submitted
another application to proceed in forma pauperis. The second complaint was assigned docket
number 15-3198. Upon review of the declarations accompanying plaintiffs applications to
proceed in forma pauperis, the Court finds that plaintiffs financial status qualifies him to
commence these actions without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(l).

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Accordingly, plaintiffs applications to proceed in forma pauperis are GRANTED.
However, because the identical complaints are duplicative, the Court consolidates them
under the first filed complaint, 15-1958, and directs that the case assigned docket number 153198 be closed. All future filings shall be made only under docket number 15-1958. In addition,
for the reasons that follow, the complaint is dismissed as against the Nassau County Attorney.
The Clerk of Court shall forward to the United States Marshal Service for the Eastern District of
New York copies of plaintiffs summonses, complaint and this Order for service upon the
defendants other than the Nassau County Attorney without prepayment of fees.
DISCUSSION

I.

Application to Proceed In Forma Pauperis
Upon review of plaintiffs declaration in support of his application to proceed in forma

pauperis, the Court determines that plaintiffs financial status qualifies him to commence this

actions without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(l). Therefore, plaintiffs
request to proceed in forma pauperis is granted.
II.

Consolidation of the Complaints
Under Federal Rule of Civil Procedure 42, "[i]f actions before the court involve a

common question of law or fact, the court may: (I) join for hearing or trial any or all matters at
issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary
cost or delay." Fed. R. Civ. P. 42(a). "The trial court has broad discretion to determine whether
consolidation is appropriate." Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990).
Consolidation is appropriate in order to serve the interests of judicial economy. See, e.g.,
Jacobs v. Castillo, No. 09 Civ. 953 (CM), 2009 WL 1203942, at *3 (S.D.N.Y. Apr. 23, 2009)

("Consolidation would further the goal of 'judicial economy' because discovery in each case is

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likely to be identical, motion practice and trial in the two cases would most likely cover the same
facts and some identical issues oflaw."). Specifically, consolidation of cases with common
questions of law or fact is favored "to avoid unnecessary costs or delay," Johnson, 899 F.2d at
1284, and to "expedite trial and eliminate unnecessary repetition and confusion," Devlin v.
Transp. Commc 'n Int'l Union, 175 F.3d 121, 130 (internal citations omitted).
"The Second Circuit has long adhered to the first-filed doctrine in deciding which case to
dismiss where there are competing litigations. Where there are several competing lawsuits, the
first suit should have priority, absent the showing of balance of convenience or special
circumstances giving priority to the second." Kellen Co. v. Calphalon Corp., 54 F. Supp. 2d 218,
221 (S.D.N. Y. 1999) (internal quotation marks, alterations, and citations omitted); accord Adam
v. Jacobs, 950 F.2d 89,92 (2d Cir. 1991); First City Nat'/ Bank & Trust Co. v. Simmons, 878
F.2d 76, 79 (2d Cir. 1989). The first-filed rule seeks to conserve judicial resources and avoid
duplicative litigation. See Adam v. Jacobs, 950 F.2d 89,92 (2d Cir. 1991); First City Nat'/ Bank

& Trust Co., 878 F .2d at 80; Kellen, 54 F. Supp. 2d at 221. Here, the complaints filed by
plaintiff are identical. Accordingly, the Court orders that plaintiff's complaints be consolidated
pursuant to Federal Rule of Civil Procedure 42 into the first filed case, 15-CV-1958. The Clerk
of Court is directed to: (I) consolidate these actions; and (2) mark the second case (15-CV -3198)
closed; and (3) forward copies of the summonses, the complaint and this order to the United
States Marshal Service for service upon the defendants other than the County Attorney forthwith.
All future filings are to be docketed in 15-CV-1958.
III.

Sufficiency of the Pleadings
A.

Legal Standard

A district court is required to dismiss an in forma pauperis complaint if the action is

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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. 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
28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
It is axiomatic that district courts are required to read pro se complaints liberally, see

Erickson v. Pardus, 551 U.S. 89,94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and to construe them "'to raise
the strongest arguments that [they] suggest []."'Chavis, 618 F.3d at 170 (quoting Harris v. City

ofNew York, 607 F.3d 18, 24 (2d Cir. 2010)). 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, 123 (2d Cir.
2010), aff'd, 133 S. Ct. 1659 (2013) (citingAshcroftv. Iqbal, 556 U.S. 662 (2009)). However,
"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements ... are not entitled to the assumption of truth." Iqbal, 556 U.S. at 678 (citation
omitted).
Notwithstanding a plaintiffs prose status, 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 (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 misconduct
alleged." Iqbal, 556 U.S. at 678. The plausibility standard requires "more than a sheer
possibility that a defendant has acted unlawfully." !d.; accord Wilson v. Merrill Lynch & Co.,
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

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of action will not do."' Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Plaintiffs
factual allegations must also be sufficient to give the defendant "fair notice of what the ... claim
is and the grounds upon which it rests," Twombly, 550 U.S. at 555 (internal quotation marks and
citation omitted).
B.

Substantive Claim

Although the plaintiff has named the Nassau County Attorney as a defendant, there are
absolutely no facts in the complaint that relate to this defendant. It is unclear how the Nassau
County Attorney was involved, if at all, in the incident alleged to have occurred while plaintiff
was detained at the Nassau County Correctional Facility. Because "a plaintiff must establish a
given defendant's personal involvement in the claimed violation in order to hold that defendant
liable in his individual capacity under§ 1983," Patterson v. Cnty. of Oneida, 375 F.3d 206,229
(2d Cir. 2004), plaintiffs claim against the Nassau County Attorney is not plausible and it is thus
dismissed without prejudice.
CONCLUSION
For the reasons set forth above, plaintiff's application to proceed in forma pauperis is
granted and the first and second complaints are consolidated into plaintiffs first-filed case, 151958. The Clerk of Court is directed to mark the second case (15-CV -3198) closed and all
future filings are to be docketed in 15-CV-1598. The Clerk of Court is further directed to forward
copies ofthe summons, the complaint and this order to the United States Marshal Service for
service upon the defendants other than the Nassau County Attorney forthwith and to mail a copy
of this Order to plaintiff at his last known address.
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

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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.

Dated:

ianco
States District Judge

June 8, 2015
Central Islip, New York

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