Johnson v. Sposato et al

Filing 7

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; 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 ag ainst the NCSD for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). The Complaint is sua sponte DISMISSED WITHOUT PREJUDICE as against the remaining Defendants for failure to state a claim pursuant to 28 U.S .C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) and WITH LEAVE TO FILE AN AMENDED COMPLAINT. 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. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 10/27/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DAVID JOHNSON,
Plaintiff,

MEMORANDUM & ORDER
15-CV-3654(JS)(ARL)

-againstSHERIFF MICHAEL SPOSATO, NASSAU
COUNTY SHERIFF DEPT., ARMOR CORR.
HEALTH SERVICES, NASSAU COUNTY,
and DR. CARL SANCHEZ,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
David Johnson, pro se
60 East 93rd Street, Apt. B-301
Brooklyn, NY 11212
For Defendants:

No appearances.

SEYBERT, District Judge:
On June 22, 2015, then-incarcerated pro se plaintiff
David Johnson (“Plaintiff”) filed an in forma pauperis Complaint in
this Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against
Sheriff Michael Sposato (“Sposato”), the Nassau County Sheriff
Department (“NCSD”), Armor Corr. Health Services (“Armor”), Nassau
County, and Dr. Carl Sanchez (“Dr. Sanchez” 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. § 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 pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b) for
failure to state a claim for relief.
BACKGROUND1
Plaintiff’s sparse handwritten Complaint, submitted on
a Section 1983 complaint form, alleges, in its entirety:
On or about the 28th day of March 2015, at
approximately 11:15 A.M. while incarcerated at
the Nassau County Correctional Center, in E1G-36 cell, after having a fight and then
placed in hand cuffs and taken to my above
respected cell, one of the officers who
escorted me to my cell after taking off my
hand cuffs slamed my hand in the feeding spot
causing me to sustain a right hand thumb
fracture. After my hand started to swell a
great deal I requested to be taken to medical
to see a doctor based on the extreme swelling
and pain I was having in my fractured thumb.
After being taken to the Armor Medical
Department here at the Nassau County Jail, I
was
completely
denied
proper
adequate,
effective medical treatment and care. Instead
of providing me with any kind of medication
for pain or x-ray to determine the severity of
my injury, I was just given a motrin and
returned back to my cell.2
(Compl. ¶ IV.)

Plaintiff alleges that, on April 16, 2015, his

thumb was x-rayed and revealed a fracture.

(Compl. at 5.)

Plaintiff claims that he was first seen by an orthopedist (Dr.
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’s allegations have been reproduced here exactly as
they appear in the Complaint. Errors in spelling, punctuation,
and grammar have not been corrected or noted.
2

Dennis) on May 20, 2015, who advised Plaintiff that he would need
surgery and put a cast on Plaintiff’s hand.

(Compl. at 5.)

For

relief, Plaintiff seeks to recover a monetary award in total sum of
$20 million for inter alia “pain and suffering, mental stress and
depression, cruel and unusual punishment and medical negligents.”
(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,
3

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
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
4

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

556 U.S. at

Thus, 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 alleged
constitutional deprivation.”

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 and should be dismissed.
Johnson

v.

Barney,

360

F.

App’x

199,

201

(2d

Cir.

2010).

(“[Plaintiff’s] claims against [Defendant] failed as a matter of
law

because

[Plaintiff]

failed
5

to

allege

sufficient

personal

involvement
§ 1983.”)

on

[Defendant’s]

part

to

make

him

liable

under

See, e.g., Hemmings v. Gorczyk, 134 F.3d 104, 109 n.4

(2d Cir. 1998).

With these standards in mind, the Court considers

Plaintiff’s claims against the Defendants.
A.

Claims Against Sheriff Sposato and Dr. Sanchez
As set forth above, a plausible Section 1983 claim must

allege the personal involvement of the defendant in the alleged
constitutional violation.

See supra at 5-6; Rivera, 655 F. Supp.

2d at 237; see also Warren v. Goord, 476 F. Supp. 2d 407, 413
(S.D.N.Y 2007) (“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)) aff’d, 368 F.
App’x 161 (2d Cir. 2010)).

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).
Plaintiff’s

Complaint

does

not

include

any

factual

allegations sufficient to demonstrate personal involvement by
Sheriff Sposato or Dr. Sanchez regarding the events alleged in the
Complaint and it appears that Plaintiff seeks to impose liability
against Sheriff Sposato based solely on the supervisory position he
holds. Indeed, apart from the caption, neither Sheriff Sposato nor
Dr. Sanchez are mentioned in the Complaint.
6

(See generally,

Compl.)

Wholly absent, however, are any allegations sufficient to

establish

any

personal

involvement

by

Sheriff

Sposato

or

Dr. Sanchez in the unlawful conduct of which Plaintiff complains.
Accordingly, Plaintiff’s claims against Sheriff Sposato and Dr.
Sanchez are not plausible and are DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2)(b)(ii); 1915A(b).
B.

Claims Against the NCSD
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 the NCSD because it
lacks the capacity to be sued).

Thus, Plaintiff’s claim against

the NCSD is not plausible because it has no legal identity separate
and apart from Nassau County. Accordingly, this claim is DISMISSED
WITH

PREJUDICE

pursuant

to

28

1915A(b).
7

U.S.C.

§§

1915(e)(2)(B)(ii);

C.

Claim Against Nassau County
It is well-established that a municipality such as Nassau

County cannot be held liable under § 1983 on a respondeat superior
theory.

See Monell v. Dep’t of Soc. Servcs. of N.Y. City, 436 U.S.

658, 690–91, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Roe v.
City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).

To prevail on

a Section 1983 claim against a municipality, a plaintiff must show
“that ‘action pursuant to official municipal policy’ caused the
alleged constitutional injury.”

Cash v. Cnty. of Erie, 654 F.3d

324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S. 51,
---, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)); see also
Monell, 436 U.S. at 690–91.

“[L]ocal governments . . . may be sued

for constitutional deprivations visited pursuant to governmental
‘custom’ even though such a custom has not received formal approval
through the body’s official decisionmaking channels.”

Monell, 436

U.S. at 690–91.
A plaintiff can ultimately establish the existence of a
municipal policy or custom by showing: (1) the existence of a
formal policy which is officially endorsed by the municipality; (2)
actions taken or decisions made by municipal officials with final
decision-making authority, which caused the alleged violation of
plaintiff’s

civil

rights;

(3)

a

practice

so

persistent

and

widespread that it constitutes a custom of which constructive
knowledge and acquiescence can be implied on the part of the policy
8

making officials; or (4) a failure by policymakers to properly
train or supervise their subordinates, amounting to deliberate
indifference to the rights of those who come in contact with the
municipal employees.

Moray v. City of Yonkers, 924 F. Supp. 8, 12

(S.D.N.Y. 1996) (citations omitted).
Here, even affording the pro se Complaint a liberal
construction, there are no factual allegations from which the Court
could reasonably construe a plausible Section 1983 cause of action
against Nassau County. Accordingly, Plaintiff’s Complaint does not
allege a plausible Section 1983 claim against Nassau County and is
thus DISMISSED WITHOUT PREJUDICE as against Nassau County pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A(b).
D.

Claim Against Armor
Armor Correctional Health, Inc. is “a private company

contracted to perform medical services for inmates at the Nassau
County Correctional Center.”

See Gaines v. Armor Health Care,

Inc., No. 12–CV–4666, 2012 WL 5438931, at *3 (E.D.N.Y. 2012)
(citing Briel v. Sposato, No. 12–CV–2868, 2012 WL 3697806, at *5
(E.D.N.Y. Aug. 21, 2012)).

It is well-established that “[a]nyone

whose conduct is ‘fairly attributable to the state’ can be sued as
a state actor under § 1983.”

Filarsky v. Delia, ––– U.S. ––––, 132

S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012) (citation omitted).
Thus, a private employer acting under color of state law may be
held liable under Section 1983 for the acts of its employees where
9

the unconstitutional act was authorized or undertaken pursuant to
the official policy of the private entity employer and the employer
was

jointly

engaged

with

chargeable to the state.

state

officials

or

its

conduct

is

Rojas v. Alexander’s Dep’t Store, Inc.,

924 F.2d 406, 408–09 (2d Cir. 1990); Dilworth v. Goldberg, 914 F.
Supp. 2d 433, 452 (S.D.N.Y. 2012); Mejia v. City of New York, 119
F. Supp. 2d 232, 275 (E.D.N.Y. 2000) (collecting cases).
Here, as is readily apparent, Plaintiff has not alleged
any facts to support a plausible Section 1983 claim against Armor.
Wholly absent are any allegations sufficient for the Court to
construe that Plaintiff’s constitutional rights were violated
pursuant to some policy, practice, or custom of Armor as is
required by Monell and its progeny. Accordingly, Plaintiff’s claim
against Armor is sua sponte DISMISSED WITHOUT PREJUDICE for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) (ii) and
1915A(b)(1).
IV.

Leave to Amend
Given

the

Second

Circuit’s

guidance

that

a

pro

se

Complaint should not be dismissed without leave to amend unless
amendment would be futile, Ashmore v. Prus, 510 F. App’x 47, 49 (2d
Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)), the Court has carefully considered whether leave to amend
is warranted here.

Upon such consideration, the Court finds that

since the deficiency noted above with regard to Plaintiff’s claim
10

against the NCSD is substantive in nature and would not be remedied
if Plaintiff were afforded an opportunity to amend his Complaint,
leave to amend the Complaint as against the NCSD is DENIED.
However, Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT as
against the remaining Defendants in accordance with this Order.
Any Amended Complaint shall be filed within thirty (30) days from
the date of this Order, shall be titled “Amended Complaint,” and
shall bear the same docket number as this Order, No. 15-CV3654(JS)(ARL).

Plaintiff is cautioned that an Amended Complaint

completely replaces the original Complaint.

Therefore, all claims

and allegations Plaintiff wishes to pursue should be included in
the Amended Complaint.
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 NCSD for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A(b)(1).

The

Complaint

is

sua

sponte

DISMISSED

WITHOUT

PREJUDICE as against the remaining Defendants for failure to state
a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) and
WITH LEAVE TO FILE AN AMENDED COMPLAINT.

Any Amended Complaint

shall be filed within thirty (30) days from the date of this Order,
shall be titled “Amended Complaint,” and shall bear the same docket
number as this Order, No. 15-CV-3654(JS)(ARL).
11

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 directed to mail a copy of this
Order to the pro se Plaintiff.
SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: October
27 , 2015
Central Islip, New York

12