Johnson v. Sposato et al

Filing 6

ORDER: GRANTING the 2 Motion for Leave to Proceed in forma pauperis. The complaint is sua sponte dismissed without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B)(ii), 1915(b)(1) and with leave to file an amended complaint in accordance with this O rder within thirty (30) days from the date of 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 good faith and therefore in forma Pauperis status is deni8ed for the purpose of any appeal. Ordered by Judge Joseph F. Bianco on 1/5/2016. cm to pro se plaintiff by fcm. (Mahon, Cinthia)

FILEB
IN CLERK'S OFFICii
DISTRICT COURT EO N y

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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.'.!.'J C5 2!H3

LONG ISLAND OFFICE

DACASTA DIMITRIOS JOHNSON, #150051272556,
Plaintiff,

ORDER
15-CV-6159(JFB)(ARL)

-againstSHERIFF MICHEAL [SIC] SPOSATO, ARMOR
MEDICAL STAFF AT NASSAU COUNTY CORR.
CENTER,
Defendants.

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JOSEPH F. BIANCO, District Judge:

On October 22, 2015,pro se plaintiffDacasta Dimitrios Johnson ("plaintiff') filed an in

forma pauperis civil rights complaint against Sheriff Michael Sposato ("Sheriff Sposato") and
unidentified "Armor Medical Staff' at the Nassau County Correctional Center ("Armor Staff' and
together "defendants") pursuant to 42 U.S.C. § 1983 ("Section 1983") together with an application
to proceed in forma pauperis. Upon review of the declaration accompanying plaintiff's
application to proceed in forma pauperis, the Court finds that plaintiffs financial status qualifies
him to commence this action without prepayment ofthe filing fees. See 28 U.S.C. § 1915(a)(l).
Accordingly, plaintiff's application 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)(l) and with leave to file an amended complaint.
BACKGROUND
Plaintiff filed his complaint on the Court's Section 1983 complaint form. In its entirety,
plaintiff alleges: 1

1

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All material allegations in the complaint are presumed to be true for the purpose of this Order. See, e.g., Rogers v.
City of Troy, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a prose complaint for sua sponte dismissal, a court is
required to accept the material allegations as true).

On 9-24-15 I was bitten by a spider at Nassau County Corr. Center due to the
negligence of SheriffMicheal Sposato. I reported this bite to the Medical Staff
Armor and it took them three day's before they provided me with the proper
medical attention that was needed for such a wound. Due to the negligence of this
Institution I am left with a limp in my walk due to the lack of immediate medical
attention needed. 2
(Compl.

~IV.)

In the space on the complaint form that calls for a description of any claimed

injuries and any medical treatment that was required and/or provided, plaintiff alleges that "[m ]y
right leg is injured due to the lack of medical care provided by this facility. I was placed in the
infirmary for three day's then released before my wound could properly heal." (Id. ,-r IV.A.) For
relief, plaintiff seeks to recover a monetary damages award of $1 million as well as "proper
medical care." (ld. 4ff V.)
DISCUSSION
I.

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

pauperis, the Court determines that plaintiff's financial status qualifies him to commence this
action without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(l). Therefore, plaintiff's
request to proceed in forma pauperis is granted.
II.

Sufficiency of the Pleadings
A.

Legal Standard

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

2

Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling,
punctuation, and grammar have not been corrected or noted.

2

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).
It is axiomatic that district courts are required to read prose 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. 201 0), 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 ofthe 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 111, 123 (2d Cir. 2010), aff'd, 133 S. Ct. 1659
(2013) (citing Ashcroft v. 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 oftruth." Iqbal, 556 U.S. at 678-79 (citation omitted).
Notwithstanding a plaintiffs pro se 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 of action will not
do."' Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
B.

Substantive Claims

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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; see also Rehberg v. Paulk, 132 S. Ct. 1497, 1501-02 (2012). "In order to state
a claim under § 1983, a plaintiff must allege (1) that the conduct complained of was committed by
a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v.

Regan, 777 F.2d 825, 828 (2d Cir. 1985); see also Rae v. Cnty. ofSuffolk, 693 F. Supp. 2d 217,223
(E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).

Section 1983 does

not itself create substantive rights; it offers "a method for vindicating federal rights elsewhere
conferred." Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). In addition, "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." !d. at 229; see also Gill v.

Mooney, 824 F.2d 192, 196 (2d Cir.1987) ("Absent some personal involvement by [a defendant] in
the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983.").
A complaint based upon a violation under Section 1983 that does not allege the personal
involvement of a defendant fails as a matter oflaw. See Johnson v. Barney, 360 F. App'x 199,
201 (2d Cir. 201 0).
1.

Claim Against Sheriff Sposato

Although plaintiff has named Sheriff Sposato as a defendant, the complaint does not
include any factual allegations of conduct or inaction attributable to Sheriff Sposato.
Accordingly, it appears that plaintiff seeks to impose liability against Sheriff Sposato based upon
the supervisory position he holds. Because "a plaintiff must establish a given defendant's
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personal involvement in the claimed violation in order to hold that defendant liable in his
individual capacity under§ 1983," Patterson, 375 F.3d at 229, plaintiffs Section 1983 claim
against Sheriff Sposato is not plausible and it is thus dismissed without prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
2. Claim Against Armor Staff
Notwithstanding the fact that plaintiff alleges that his claimed injury was the result of
"negligence" (Compl.

~IV),

because plaintiffhas submitted the complaint on the Court's Section

1983 complaint form, the Court liberally construes it to include a deliberate indifference claim.
"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." Caiozzo v. Koreman, 581
F.3d 63, 72 (2d Cir. 2009). Plaintiff does not allege whether he is a pre-trial detainee (whose
claim would thus arise under the Fourteenth Amendment's due process clause) or a convicted
inmate (whose claim would then arise under the Eighth Amendment). Because the standard for
analyzing a deliberate indifference claim is the same whether asserted under the Eighth or
Fourteenth Amendment, such omission is of no moment. Hill v. Nieves, 06 Civ. 8213 (DLC),
2008 WL 858455, at *5 (S.D.N.Y. 2008) (As courts routinely recognize, "[t]he rubric for
evaluating deliberate indifference claims is the same under the Eighth and Fourteenth
Amendments.") (citing Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). "[D]eliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain ... proscribed by the Eighth Amendment," and therefore, "states a cause of
action under§ 1983." Estelle, 429 U.S. at 104-05 (citation and internal quotation marks omitted).
As the Second Circuit has explained,
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[t]he Eighth Amendment requires prison officials to take reasonable measures to
guarantee the safety of inmates in their custody. Moreover, under 42 U.S.C. § 1983,
prison officials are liable for harm incurred by an inmate if the officials acted with
"deliberate indifference" to the safety of the inmate. However, to state a cognizable
section 1983 claim, the prisoner must allege actions or omissions sufficient to
demonstrate deliberate indifference; mere negligence will not suffice.

Hayes v. N.Y. C. Dep'tofCorr., 84 F.3d 614,620 (2d Cir. 1996) (internal citations omitted).
Within this framework, "[d]eliberate indifference to a prisoner's serious medical needs
constitutes cruel and unusual punishment, in violation of the Eighth Amendment, as made
applicable to the states through the Fourteenth Amendment." Be/lotto v. Cnty. ofOrange, 248 F.
App'x 232, 236 (2d Cir. 2007). Deliberate indifference exists "when an official 'knows that
inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it."' Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Farmer v.

Brennan, 511 U.S. 825, 847 (1994)). Where an official exhibits deliberate indifference to a
known injury, he or she may be held liable under Section 1983. See Ortiz v. Goard, 276 F. App'x
97, 98 (2d Cir. 2008).
The deliberate indifference standard consists ofboth objective and subjective elements: (1)
"the alleged deprivation must be, in objective terms, 'sufficiently serious,"' Hathaway v.

Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and
(2) "the charged official must act with a sufficiently culpable state of mind," id.; see also

Salahuddin v. Goard, 467 F.3d 263, 279-81 (2d Cir. 2006) (elaborating on two-part test and
describing first prong as objective and second prong as subjective); Hayes, 84 F.3d at 620 (stating
that deliberate indifference test requires a plaintiff to show both an objective "substantial risk of
serious harm," and that "prison officials possessed sufficient culpable intent"). Thus, in order for
a plaintiff to establish a deliberate indifference claim, he must satisfy both the objective and
subjective prongs. See generally Allah v. Michael, 506 F. App'x 49, 51 (2d Cir. 2012) (affirming
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district court's dismissal of plaintiffs deliberate indifference claim where plaintiff failed to satisfy
objective prong of the test); Skates v. Vanbockstaele, No. 11-CV-4414 (LAP)(MHD), 2013 WL
658253, at* 4-5 (S.D.N. Y. Feb. 25, 2013) (granting motion to dismiss where plaintiff could satisfy
neither the objective nor the subjective prongs to his deliberate indifference claim).
Here, as is readily apparent, plaintiffs sparse allegations do not state a plausible deliberate
indifference claim. Wholly absent are any facts from which the Court could reasonably construe
that the unidentified "Annor Medical Staff' members' action or inaction meets the objective and
subjective prongs. Thus, plaintiffs has not alleged a plausible claim against Annor Staff and
such claim is dismissed without prejudice pursuantto 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(l).
III.

Leave to Amend
In light of plaintiffs pro se status, the Court has considered whether he should be afforded

an opportunity to replead his claims. "When addressing a pro se complaint, a district court should
not dismiss 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." Aquino v. Prudential Life & Cas. Ins.

Co., 419 F. Supp. 2d 259,278 (E.D.N.Y. 2005); see also Thompson v. Carter, 284 F.3d 411,419
(2d Cir. 2002) ("The liberal pleading standards applicable to pro se civil rights complaints in this
circuit require that the district court give [plaintiff] an opportunity to flesh out his somewhat
skeletal complaints before dismissing them"); Cuoco, 222 F.3d at 112. Rule 15(a)(2) of the
Federal Rules of Civil Procedure provides that a party shall be given leave to amend "when justice
so requires." Fed. R. Civ. P. 15(a)(2). "This relaxed standard applies with particular force to pro

se litigants." Pangburn v. Culbertson, 200 F .3d 65, 70 (2d Cir. 1999).
In an abundance of caution, plaintiff is granted leave to file an amended complaint in
accordance with this order. Plaintiff is cautioned, however, that, "[f]or purposes of Eighth [or
7

Fourteenth] Amendment claims, the Supreme Court has drawn a 'distinction between mere
negligence and wanton conduct .... "' Graham v. Poole, 476 F. Supp. 2d 257,259-60 (W.D.N.Y.
2007) (quoting Whitley v. Albers, 475 U.S. 312, 322 (1986)). It is well-established that "mere
negligence is not actionable, nor is 'mere medical malpractice ... tantamount to deliberate
indifference."' Green v. McLaughlin, 480 F. App'x 44,48 (2d Cir. 2012) (quoting Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)); see also Estelle, 429 U.S. at 106 ("Medical

malpractice does not become a constitutional violation merely because the victim is a prisoner");
Salahuddin, 467 F .3d at 280 (stating that deliberate indifference "entails more than mere

negligence; the risk of harm must be substantial and the official's actions more than merely
negligent").
Plaintiff is cautioned that the amended complaint completely replaces the amended
complaint and therefore must include factual allegations and any claims plaintiff seeks to pursue
against the defendants. The amended complaint must be clearly labeled "amended complaint",
bear the same docket number as this order, 15-6159(JFB)(ARL) and shall be filed within thirty
(30) days from the date of this order. If plaintiff does not timely file an amended complaint,
judgment shall enter and this case will be closed. If plaintiff timely files an amended complaint, it
shall be screened pursuant to 28 U.S.C. §§ 1915(e), 1915A. Alternatively, plaintiff may pursue
any valid state law claims he may have, including negligence, in state court.
CONCLUSION
For the reasons set forth above, the Court grants plaintiffs application to proceed in forma
pauperis. However, the complaint is sua sponte dismissed without prejudice and with leave to

file an amended complaint in accordance with this Order within thirty (30) days from the date of

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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 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 (1962).

SO ORDERED.

Dated:

S:

co'~
tates District Judge

2015
January
Central Islip, New York

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