Edwards v. Armor Correctional Health Service et al

Filing 6

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 aga inst the NCSD for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE against the remaining Defendants for failure to state a claim pursuant to 28 U.S.C . §§ 1915(e)(2)(B)(ii), 1915A(b)(1). However, Plaintiff is GRANTED LEAVE TO AMEND his Complaint in accordance with this Order. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this Order would not be taken in goo d 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 Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 12/14/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
RICHARD EDWARDS,
Plaintiff,

MEMORANDUM & ORDER
15-CV-4791(JS)(ARL)

-againstARMOR CORRECTIONAL HEALTH SERVICE,
NASSAU COUNTY SHERIFF’S
DEPARTMENT, and DR. CARL SANCHEZ,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Richard Edwards, pro se
15001317
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearances.

SEYBERT, District Judge:
On August 10, 2015, incarcerated pro se plaintiff Richard
Edwards (“Plaintiff”) filed a Complaint in this Court pursuant to
42 U.S.C. § 1983 (“Section 1983”) against Armor Correctional Health
Service (“Armor”), the Nassau County Sheriff’s Department (“NCSD”)
and Dr. Carl Sanchez (“Dr. Sanchez” and collectively, “Defendants”),
accompanied by an application to proceed in forma pauperis.
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.
1

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 WITH PREJUDICE as against the NCSD
and WITHOUT PREJUDICE as against Armor and Dr. Sanchez.

Plaintiff

is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT as set forth herein
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
BACKGROUND1
Plaintiff’s brief Complaint alleges the following facts
in their entirety:2
I have a right prosthetic leg and the socks and
liner is worn out and needs to be replaced
because it’s causing open sore wounds, pain, and
making it difficult for me to walk. I dropped
numerous sick call forms (first one dated back
in March) to see medical complaining about the
issue. On one of my medical visits a guy by the
name of Dr. Carl Shancez3 was going over my file
and told me the order was in but most likely I
will be denied new socks & liner. I told Mr.
Shancez I need them, it’s important for my
prosthesis and he told me “good luck getting
them.” I grieved this issue on July 7th, 2015
and the grievance coordinator accepted my
The following facts are taken from Plaintiff’s Complaint and are
presumed to be true for the purposes of this Memorandum and Order.
1

The excerpts from the Complaint are reproduced here exactly as they
appear in the original and errors in spelling, punctuation, and
grammar have not been corrected or noted.
2

The Court notes that the caption of the Complaint names the
individual Defendant as “Dr. Carl Sanchez” and, although Plaintiff
spells this Defendant’s surname “Shacez” in the body of the
Complaint, for clarity the Court will use Dr. Sanchez to refer to
this Defendant.
3

2

grievance and told me the socks and liner were
ordered and a consent to see orthopedic was made
too. Here it is weeks; almost a month later and
I still haven’t been seen by orthopedic or
received the sock & liner for my prosthesis. I
wrote to the Health Service Administrator Ms.
Healy complaining about this issue. Also, my
8th Amendment is being violated, cruel and
unusual punishment.
I’m not being provided
the proper medical care I’m entitled to
therefore my 14th Amendment (Due Process) is
being violated also.
(Compl. ¶ IV.)

Plaintiff claims that he is “starting to get open

sore wounds on my stump area that causes me severe pain and makes
it difficult for me to walk.”

(Compl. ¶ IV.A.)

For relief,

Plaintiff seeks to recover a monetary damages award in total sum of
$5 million “for pain and suffering, mental stress, physical stress,
depression, cruel and unusual punishment, [and] medical negligents
[sic].”

(Compl. ¶ V.)
DISCUSSION

I.

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.

3

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
relief.

See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b).

The

Court is required to dismiss the action as soon as it makes such a
determination.

See 28 U.S.C. § 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 misconduct
alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

1949, 173 L. Ed. 2d 868 (2009) (citing Twombly, 550 U.S. at 556).
The plausibility standard requires “more than a sheer possibility
that a defendant has acted unlawfully.”

Id. at 678; accord Wilson

v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
4

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, 1501B02, 182 L. Ed. 2d 593 (2012).

To state a claim under

Section 1983, a plaintiff must “‘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)).
A.

Claim 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 from the municipality
and, therefore, cannot sue or be sued.”

5

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).

Thus, Plaintiff’s claim against the

NCSD is not plausible because the NCSD has no legal identity separate
and apart from Nassau County.
WITH

PREJUDICE

pursuant

Accordingly, this claim is DISMISSED

to

28

U.S.C.

§§

1915(e)(2)(B)(ii),

1915A(b)(1).
However, given Plaintiff’s pro se status and affording his
Complaint a liberal construction, the Court next considers whether
he

has

alleged

a

plausible

municipality, Nassau County.

Section

1983

claim

against

the

For the reasons that follow, the Court

finds that he has not.
B.

Claim as Construed 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. Servs. 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
6

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.
constitutional

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

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 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
7

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 as construed against Nassau
County.

Accordingly, Plaintiff’s Section 1983 claim, as construed

against Nassau County is DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
C.

Claim Against Armor
Plaintiff names Armor as a Defendant but does not include

any factual allegations against it.

The Court’s research reveals

that 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) (additional citation omitted)).
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 the unconstitutional
act was authorized or undertaken pursuant to the official policy of
the private entity employer and the employer was jointly engaged with
8

state officials or its conduct is chargeable to the state.

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).

Moreover, there is no respondeat superior

liability for Section 1983 claims and, in the absence of any
allegations

of

individual

liability,

dismissal

is

required.

Minneci v. Pollard, ––– U.S. ––––, 132 S. Ct. 617, 625, 181 L. Ed.
2d 606 (2012); Southerland v. City of N.Y., 681 F.3d 122, 137 (2d
Cir. 2012).
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, 436 U.S. at 691-94, 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).
D.

Claim Against Dr. Sanchez
“To establish an Eighth Amendment4 violation arising out

Plaintiff does not allege whether he is a convicted prisoner or a
pretrial detainee.
The Due Process Clause of the Fourteenth
4

9

of inadequate medical treatment, a prisoner must prove ‘deliberate
indifference to [his] serious medical needs.’”

Johnson v. Wright,

412 F.3d 398, 403 (2d Cir. 2005) (alteration in original) (quoting
Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed.
2d 251 (1976)).

“[T]he deliberate indifference standard embodies

both an objective and subjective prong.”
F.3d 550, 553 (2d Cir. 1996).

Hathaway v. Coughlin, 99

The objective prong requires the

prisoner to allege a sufficiently serious injury.

Id.

The Second

Circuit has defined a sufficiently serious injury as “a condition
of urgency, one that may produce death, degeneration, or extreme
pain.”

Id. (internal quotation marks and citation omitted).

The

subjective prong requires the prisoner to show the charged official
acted with a “sufficiently culpable state of mind.”

Id.

The United

States Supreme Court has stated that the subjective element “‘entails
something more than mere negligence . . . [but] something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.’”

Id. (elipsis and alteration in

Amendment protects pretrial detainees from inadequate medical care
while the Eighth Amendment protects incarcerated prisoners from
cruel and unusual punishment in the form of inadequate medical care.
Burks v. Nassau Cnty. Sheriff’s Dep’t, 288 F. Supp. 2d 298, 301–02
(E.D.N.Y. 2003). Such distinction is of no moment because the
standard for analyzing each claim is the same. Id. at 302 (citation
omitted); see also Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009)
(“Claims for deliberate indifference to a serious medical condition
or other serious threat to the health or safety of a person in custody
should be analyzed under the same standard irrespective of whether
they are brought under the Eighth or Fourteenth Amendment.”).
10

original) (citing Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct.
1970, 1978, 128 L. Ed. 2d 811 (1994)).
Here, as is readily apparent, Plaintiff has wholly failed
to allege any “acts or omissions sufficiently harmful to evidence
[the] deliberate indifference” standard.

Estelle, 429 U.S. at 106.

Accordingly, Plaintiff has not alleged a plausible inadequate
medical care claim against Dr. Sanchez and it is thus DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A(b)(1).
IV.

Leave to Amend
Given the Second Circuit’s guidance that 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,” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010), Plaintiff is GRANTED LEAVE TO AMEND
his Complaint in accordance with this Order.

Any Amended Complaint

shall be filed within thirty (30) days from the date of this Order,
shall be titled AAmended Complaint,@ and shall bear the same docket
number as this Order, No. 15-CV-4791(JS)(ARL).

Plaintiff is

cautioned

the

Complaint.

that

an

Amended

Complaint

supercedes

original

Therefore, all claims and allegations Plaintiff wishes

to pursue should be included in the Amended Complaint.

11

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).

Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE

against the remaining Defendants for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
However, Plaintiff is GRANTED LEAVE TO AMEND his Complaint
in accordance with this Order.

Any Amended Complaint shall be filed

within thirty (30) days from the date of this Order, shall be titled
AAmended Complaint,@ and shall bear the same docket number as this
Order, No. 15-CV-4791(JS)(ARL).
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
Memorandum and Order to the pro se Plaintiff.
SO ORDERED.
Dated:

December
14 , 2015
Central Islip, New York

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
12