Taylor v. Sposato
Filing
5
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 WITHOUT PREJUDICE fo r failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT within thirty (30) days from the date of this Memorandum and Order. If Plaintiff fails to file an A mended Complaint within the time allowed, his Complaint will be dismissed with prejudice and this case will be marked closed. 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 9/22/2015. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MICHEAL TAYLOR,
Plaintiff,
MEMORANDUM & ORDER
15-CV-3656(JS)(SIL)
-againstMICHEAL [SIC] SPOSATO,
Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Micheal Taylor, pro se
83316053
Metropolitan Detention Center
80 29th Street
Brooklyn, NY 11232
For Defendant:
No appearance.
SEYBERT, District Judge:
On June 15, 2015, incarcerated pro se plaintiff Micheal
Taylor (“Plaintiff”) filed an in forma pauperis Complaint in this
Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the
Nassau County Sheriff Michael Sposato (“Sposato” or “Defendant”)
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
WITHOUT
PREJUDICE
pursuant
to
28
U.S.C.
§§ 1915(e)(2)(B)(ii), 1915A(b)(1) 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:
I was in Nassau County Jail for Ten Months and
the whole time I was complaining about the
mold the mice and the mice droppings in the
food trays as well as the dirty showers. When
ever I talked to an area supervisor they would
tell me that I didn’t have a grievable issue
and to stop the complaints. The officers on
the unit would deny the unit of recreation and
say that it was because of me and that the
inmates needed to deal with me. On May 14th,
2014 at 10:15 a.m. while in E2 C45 cell five
inmates ran in my cell and assaulted me and no
one was ever charged. I was taken to Medical
and was told that as long as I didn’t have any
stab wounds that I was alright. Pictures were
taken and I was sent to another unit.2
(Compl. ¶ IV.)
Plaintiff claims that, as a result of the alleged
assault, he still suffers from “really bad headaches.”
(Compl.
¶ IV.A.) For relief, Plaintiff seeks to recover a damages award in
total sum of $ 5 million for “pain, suffering [and] mental and
physical damage.”
(Compl. ¶ V.)
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
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
3
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1950, 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)).
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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
involvement
§ 1983.”).
[Plaintiff]
on
failed
[Defendant’s]
to
part
allege
to
sufficient
make
him
personal
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 Defendant.
A.
Claim Against Sposato
As set forth above, a plausible Section 1983 claim must
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allege the personal involvement of the defendant in the alleged
constitutional violation.
See supra at 4-5; 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
Sposato regarding the events alleged in the Complaint and it
appears that Plaintiff seeks to impose liability against Sposato
based solely on the supervisory position he holds.
Indeed, apart
from the caption, Sposato is not mentioned in the Complaint (see,
generally, Compl. at 1-5.)
Wholly absent are any allegations
sufficient to establish any personal involvement by Sposato in the
unlawful
conduct
of
which
Plaintiff
complains.
Accordingly,
Plaintiff’s claim against Sposato is not plausible and is DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii);
1915A(b)(1).
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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 GRANTS
Plaintiff an opportunity to amend his Complaint in accordance with
this Memorandum and Order.
Plaintiff is cautioned that an Amended
Complaint completely replaces the original Complaint and therefore
all factual allegations and claims that Plaintiff wishes to pursue
must be included in the Amended Complaint.
The Amended Complaint
shall be clearly labeled “Amended Complaint” and shall bear the
same docket number as this Memorandum and Order, 15-CV-3656, and
shall be filed within thirty (30) days from the date of this
Memorandum and Order.
If Plaintiff fails to file an Amended
Complaint within the time allowed, his Complaint will be dismissed
with prejudice and this case will be marked closed.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITHOUT PREJUDICE for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Plaintiff
is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT within thirty (30)
7
days from the date of this Memorandum and Order.
If Plaintiff
fails to file an Amended Complaint within the time allowed, his
Complaint will be dismissed with prejudice and this case will be
marked closed.
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: September
22 , 2015
Central Islip, New York
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