Kalamaras et al v. Mangano et al

Filing 21

MEMORANDUM & ORDER; For the reasons set forth above, Plaintiffs' application to proceed in forma pauperis is GRANTED, however Plaintiffs' claims challenging the Commissary pricing and selection and food service are DISMISSED WITH PREJUDIC E. Plaintiffs' claims against County Executive Mangano; Lt. Doe, #70; Cpl. Hamilton; Capt. Donahue; Commr. of Corrections; Mailroom Supervisor; Officer Simpson; Nurse Jones; Undersheriff Doe; Deputy Undersheriff Doe; Armor; and Morcos are sua sp onte DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii). In addition, Plaintiffs' claims challenging the: (1) law library; (2) care provided by Armor; and (3) mail service are als o sua sponte DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii). Plaintiffs' remaining claims shall proceed and the Clerk of the Court is directed to issue Summonses for the remai ning Defendants and to forward the Summonses together with copies of the Complaint and this Order to the USMS for service upon the remaining Defendants forthwith. The application for the appointment of pro bono counsel is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when this case is ready for trial if so warranted at that time. 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 i s DENIED for the purpose of any appeal. The Clerk of the Court is directed to update the mailing address for Kalamaras in accordance with this Order and to mail a copy of this Order to Plaintiffs at their last known addresses. So Ordered by Judge Joanna Seybert on 8/2/2016. (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------x
JAMES KALAMARAS, JONATHAN TARRELL
HOOKS, LAPHAEL MCCLENIC, JUSTIN BELL,
and CLASS,
Plaintiffs,
-against-

MEMORANDUM & ORDER
16-CV-0459(JS)(ARL)

EDWARD P. MANGANO, Nassau County
Executive; MICHAEL SPOSATO, Sheriff
of Nassau County; CAPTAIN GOLIO;
CAPTAIN ROGERS (First Name Believed
To Be Ronald); LIUTENANT [SIC]
LOUIS KERZNER; LIUTENANT [SIC]
CAMINITI (Rehab. Supervisor at
N.C.S.D.); LIUTENANT [SIC] JOHN DOE,
Badge #70 (Grievance Coordinator,
NCSD); CORPORAL HAMILTON, Badge #297;
CORPORAL ARIMANI, Badge #385; SARGEANT
[SIC] MARICHAL, Badge #65; SARGEANT
[SIC] LAVIN (BMU, Seargant [sic]);
CAPTAIN DONAHUE; SEARGANT [SIC] GILOOLEY
(BMU SEARGEANT) [sic]; SEARGANT [SIC] DOYLE;
SEARGANT [SIC] MORRANO, Badge #123; N.Y.S.
COMMS. OF CORRECTIONS; “JOHN DOE” (Commsr.);
OFFICER JOHN DOE, Badge #2574; JOHN DOE,
(Mailroom Supervisor); OFFICER JOHN DOE,
Badge #2901; JOHN DOE, (Mailroom Officer
#2220 Bald with long black beard);
OFFICER PEPITONE; OFFICER FAIELLO;
OFFICER TROTTA; OFFICER SIMPSON
(Has a Brother also a CO, Defendant is
the Shorter of the Two Brothers with a
Long Beard); NURSE JONES; OFFICER GRIFFIN
(BMU Officer); UNDERSHERIFF JOHN DOE,
NCSD; DEPUTY UNDERSHERIFF JOHN DOE, NCSD;
ARMOR CORRECTIONAL HEALTH, INC.; and
MS. MORCOS, (Medical Director of ACH
at NCCC),
Defendants.
----------------------------------------x

APPEARANCES
For Plaintiff:

James Kalamaras, 15002287, pro se1
1495 Straight Path
Lindenhurst, NY 11757
Jonathan Tarrell Hooks, 15000169, pro se
Laphael McClenic, 15007005, pro se
Justin Bell, 1500, pro se
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554

For Defendants:

No appearances.

SEYBERT, District Judge:
On January 15, 2016, incarcerated pro se plaintiffs James
Kalamaras (“Kalamaras”), Jonathan Tarrell Hooks (“Hooks”), Laphael
McClenic (“McClenic”), and Justin Bell (“Bell” and collectively,
“Plaintiffs”) filed an in forma pauperis Complaint in this Court
pursuant to 42 U.S.C. § 1983 (“Section 1983”) against twenty-nine
defendants, all of whom are alleged to be “employed [by] and work
at Nassau County Correctional Center”, with the exception of
Edward P. Mangano, Nassau County Executive (“County Executive
Mangano”), and Michael Sposato, Sheriff of Nassau County (“Sheriff

1

Since the time the Complaint was filed, Kalamaras has
apparently been discharged from the Nassau Jail and on July 20,
2016, updated his address in his other pending case in this
Court, Kalamaras v. Nassau Cty., et al., 15-CV-4649 (JS) (Docket
Entry 29). The Clerk of the Court is directed to update
Plaintiff’s address in this case. Plaintiffs are reminded of
their obligation to keep the Court apprised of any change of
address and a failure to do so makes it impossible for the Court
to communicate with Plaintiffs and may lead to the dismissal of
the Complaint.
2

Sposato”).

(Compl. at 5.2)

The other defendants are: Captain

Golio (“Capt. Golio”); Captain Rogers (First Name Believed To Be
Ronald) (“Capt. Rogers”); Liutenant [sic] Louis Kerzner (“Lt.
Kerzner”); Liutenant [sic] Caminiti (Rehab. Supervisor at N.C.S.D.)
(“Lt. Caminiti”); Liutenant [sic] John Doe, Badge #70 (Grievance
Coordinator, NCSD) (“Lt. Doe, #70”); Corporal Hamilton, Badge #297
(“Cpl. Hamilton”); Corporal Arimani, Badge #385 (“Cpl. Arimani”);
Sargeant [sic] Marichal, Badge #65 (“Sgt. Marichal”); Sargeant
[sic] Lavin (BMU, Seargant [sic]) (“Sgt. Lavin”); Captain Donahue
(“Capt. Donahue”); Seargant [sic] Gilooley (BMU Seargant [sic])
(“Sgt. Gilooley”); Seargant [sic] Doyle (“Sgt. Doyle”); Seargant
[sic] Morrano, Badge #123 (“Sgt. Morrano”); N.Y.S. Comms. of
Corrections, “John Doe” Commsr. (“Comm’r. of Corrections”); Officer
John Doe, Badge #2574 (“Officer Doe, #2574”); John Doe, Mailroom
Supervisor (“Mailroom Supervisor”); Officer John Doe, Badge #2901
(“Officer Doe, #2901”); John Doe, Mailroom Officer (#2220 Bald with
long black beard) (“Officer Doe, #2220”); Officer Pepitone; Officer
Faiello; Officer Trotta; Officer Simpson (Has a Brother Also a CO,
Defendant is the Shorter of the Two Brothers with a Long Beard)
(“Officer Simpson”); Nurse Jones; Officer Griffin (BMU Officer)
(“Officer Griffin”); Undersheriff John Doe, NCSD (“Undersheriff
Doe”); Deputy Undersheriff John Doe, NCSD (“Deputy Undersheriff
2

When citing to a page in the Complaint, the Court will use
those numbers that are generated by the Electronic Case Filing
System.
3

Doe”); Armor Correctional Health, Inc. (“Armor”); and Ms. Morcos,
Medical

Director

“Defendants”).

of

ACH

at

NCCC

(“Morcos”

and

collectively,

Accompanying the Complaint is an application to

proceed in forma pauperis from Kalamaras (Docket Entry 2) and an
application for the appointment of pro bono counsel (Docket Entry
4), also from Kalamaras.
The Complaint is styled as a class action and names
Kalamaras as the class representative.

Although they each have

signed the Complaint, none of the other Plaintiffs paid the filing
fee or filed an application to proceed in forma pauperis at the
time the Complaint was filed. Accordingly, by Notice of Deficiency
dated January 28, 2016, Hooks, McClenic, and Bell were instructed
to either remit the Court’s filing fee or complete and return the
application to proceed in forma pauperis and Prisoner Authorization
(“PLRA”) forms within fourteen (14) days in order for their
Complaint to proceed.
On February 11, 2016, McCleninc, Hooks, and Bell timely
complied with the Notice of Deficiency and filed the required PLRAs
and the applications to proceed in forma pauperis. (Docket Entries
10, 12, 14.) However, the application to proceed in forma pauperis
submitted by McClenic was incomplete.

Accordingly, by Notice of

Deficiency dated February 29, 2016, McClenic was instructed to
complete and return the enclosed application to proceed in forma
pauperis within fourteen (14) days.
4

On March 11, 2016, McClenic

filed a complete application to proceed in forma pauperis. (Docket
Entry 17.)
Upon

review

of

the

declarations

in

support

of

the

applications to proceed in forma pauperis, the Court finds that
Plaintiffs are qualified to commence this action without prepayment
of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiffs’ requests to proceed in forma pauperis are GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
DISMISSED IN PART WITHOUT PREJUDICE and DISMISSED IN PART WITH
PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A(b)(1).
The application for the appointment of pro bono counsel is DENIED
WITHOUT PREJUDICE.
THE COMPLAINT3
Plaintiffs’ handwritten, thirty-eight page Complaint is
largely a collection of diatribes, opinions, conclusions, and
speculation. Plaintiffs complain generally about the conditions of
their confinement as pretrial detainees at the Nassau County
Correctional
Complaint,
. . . .”

Center

(the

“Nassau

Jail”).

According

to

the

“Sheriff Sposato runs a ‘Gestapo’ type administration

(Compl. at 30.)
Plaintiffs allege that they “are all housed on B2B” and

are “all serving disciplinary infraction keeplock time.”
3

(Compl.

The following facts are taken from Plaintiffs’ Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
5

¶ 22.)

Plaintiffs’ allegations, while not a model of clarity, can

be categorized as follows: (1) claims challenging the sanitary
conditions of the cells on B2B (Building-B Floor 2, B-Block) at the
Nassau Jail; (2) claims challenging the adequacy of and access to
the law library; (3) claims challenging the treatment of inmates
in the Behavior Modification Unit (“BMU”); (4) claims challenging
the medical care provided by Armor; (5) claims challenging the mail
service;

(6)

challenging

claims
the

challenging

food

service;

the
(8)

commissary;
claims

(7)

claims

challenging

the

confiscation of reading materials; (9) claims challenging the
disciplinary appeals procedure; and (10) claims alleging physical
assault.
I.

Claims Challenging the Sanitary Conditions
Plaintiffs claim that the conditions of their confinement

violates their constitutional rights because there they “have no
hot water[,] the sinks are each only connected with cold water
lines, the cells, vents, and shower walls all have black mold
growing,

causing

Plaintiffs

respiratory conditions.”

significant

(Compl. ¶ 7.)

known

and

unknown

Plaintiffs further allege

that “[t]he showers are coated with layers of soap scum and mold as
well as infectious bacteria . . . [and the] comodes [sic] are ripe
with rust, [and] chipped lead-based paint.”

(Compl. ¶¶ 7-8.)

Plaintiffs also complain that they are not given “scrub brushes,
toilet brushes or cleaning supplies.”
6

(Compl. ¶ 8.)

Plaintiffs

further complain that they “have been denied razors to shave for
weeks” and that the “hair clippers availed to every other housing
area are not availed to B2B and E1F Plaintiffs.”

(Compl. ¶ 67.)

Thus, Plaintiffs claim they are “regularly denied the right to
maintain

their

personal

hygiene

and

physical

presentation.”

(Compl. ¶ 67.)
II.

Claims Concerning the Law Library
With regard to the claims concerning the law library,

although Plaintiffs allege that they are all “housed on B2B” and
“are not physically permitted to go to the library as all other
inmates do”4 (Compl. ¶ 22), Plaintiffs allege that the procedure
for entering the “E-Building Law Library” is inadequate because
inmates are required to “wait on line with upwards of 30-40 inmates
to obtain their next court date” before they are permitted to enter
the portion of the library where the books and typewriters are
kept.

(Compl. ¶ 12.)

Accordingly, Plaintiffs complain that

inmates are being denied “one continuous hour of research time”
because they have already spent “30-40 minute[s] wait[ing] on this
line.”

(Compl. ¶ 12.)

Plaintiffs also complain that the law

library located in the “A-Building” is inadequate because the
research materials are “completely inadequate and outdated.”
(Compl. ¶ 13.)

Further, Plaintiffs complain that there is no

4

Kalamaras also alleges that he “was housed in the BMU for over
two months and was subject to virtually no law library access.”
(Compl. ¶ 23.)
7

regular schedule for library time and that gang members and Federal
detainees “monopolize and control the daily workings of the Law
Library.”
III.

(Compl. at 11.)

Claims Concerning the Treatment of Detainees Relating
to the BMU
Plaintiffs’

also

complain

detainees relating to the BMU.

about

the

treatment

of

According to the Complaint,

“[d]etainees are stripped naked--entirely--in front of a camcorder
operated by Sheriff’s Department staff, with approximately 6-8
Corrections Officers who stand and watch.”
in original).)

(Compl. ¶ 28 (emphasis

While naked, Plaintiffs’ allege that a detainee is

presented with a “Behavioral Management Unit Enhanced Restraint
Order” which authorizes corrections staff to “handcuff, shackle and
use a leather restraint to restrict [] movement.”

(Compl. at 15.)

Plaintiffs’ claim that “through complete humiliation, duress, and
the threat of physical assault, a detainee is illegally coerced to
sign . . . .”

(Compl. ¶ 28.)

Plaintiffs also allege that the “BMU

cells violate due process as they are not protected by any fire
safety devices, Halon or sprinkler system inside the cells” and
inmates there are subjected to “anytime cell search[es].”

(Compl.

¶ 29.)
IV.

Claims Challenging the Medical Care Provided by Armor
Next,

Plaintiffs

complain

that

Armor

“has

rendered

unlawful medical treatment” because “[t]he Medical Director, Ms.
Morcos, who is not a doctor, M.D. or PH.D., makes acute care
8

decisions, without any doctors supervision, even cancelling (on
approx. 11/2/15) wheelchair orders for Plaintiff Kalamaras . . . .”
(Compl. ¶ 30 (emphasis in original).)

Plaintiffs allege that the

wheelchair had been “prescribed [to Kalamaras] by a different [ ]
physician’s assistant [ ] when Kalamaras suffered paralysis due to
a siezure [sic] in his entire right leg and could not walk.”
(Compl. ¶ 30.)

According to the Complaint, medical decisions are

“based wholly on financially spending as little as possible” and do
not

properly

diagnose

patients

because

Armor

does

not

have

“specialized equipment” such as “MRI and CATSCAN equipment” and
Armor “refuse[s] to send the complaining inmate to a hospital.”
(Compl. ¶ 31.)
Further, Plaintiffs’ complain that “the medical ward,
located at D2D, is a racially charged, and biased, as well as
prejudiced area.”

(Compl. ¶ 31, at 17.)

Plaintiffs allege that

the majority of employees in that ward “are all Black” and “the
inmates who are what appears to be ‘permanent fixtures’ and
‘residents’ here are all Black.”
original).)

(Compl. ¶ 31, at 17 (emphasis in

Plaintiffs claim that these inmates “walk around with

ease, do pull-ups, push-ups, and play ball in the yard--while their
canes and wheelchairs are parked nearby.”

(Compl. at 17.)

“In

obvious favoritism and fraud . . . ,” Plaintiffs claim that the
medical staff falsely issue orders of medical need to allow “nearly
a dozen Black men [to] walk around perfectly fine, swinging their
9

unlawfully issued canes around, and using their own feet to propel
their

wheelchairs,

eating

television until 12-1 A.M.”

2-3

trays

of

food

each,

watching

(Compl. ¶ 31, at 17.)

Moreover, Plaintiffs allege that Kalamaras visited the
medical unit on October 28, 2015 after experiencing “a side effect
from major grand mal siezures [sic]” and, although he was paralyzed
in his right leg, he was prescribed only physical therapy and
steroid treatment.

(Compl. ¶ 31, at 17.)

Because Kalamaras was

not prescribed a wheelchair, he was forced to “drag his leg around
the medical unit” and was subjected to ridicule.

(Compl. ¶ 31, at

17.)
V.

Claims Challenging the Mail Service
With regard to the claims concerning mail, Plaintiffs

generally contend that the mail employees “have stolen, destroyed,
discarded, and withheld federally protected United States mail.”
(Compl. ¶ 39.)

Plaintiffs’ also allege that the mail employees

“fail to properly return the return receipt mail slips . . . .”
(Compl. ¶ 39.)

For example, Plaintiffs claim that Kalamaras

attempted to mail a “parcel” to “Channel 7 News” but the parcel was
“lost” after Kalamaras tried to mail it certified mail, return
receipt requested.

(Compl. ¶ 40.)

Plaintiffs claim that this

parcel was never taken to the post office, and rely on the fact
that the return receipt card Kalamaras received was not signed by
the receiving party and had no post office bar code markings or
10

tracking number on it.

(Compl. ¶ 40.)

Finally, Plaintiffs claim

that mail is routinely withheld for “‘problem inmate’ housing areas
(B2B, BMU, EIG).”

(Compl. ¶ 42.)

For example, Plaintiffs allege

that, following a fight involving two inmates on B2B tier on
December 26, 2015, Officer Trotta withheld mail for all eighteen
inmates on the tier and stated, “[y]ou guys really think you’re
getting mail after this?” (Compl. ¶ 43.) Although they complained
to

Doyle,

he

is

alleged

to

have

done

nothing

and

therefor

Plaintiffs allege violation of their “Federal Constitutional Right
to receive mail from their families, especially the day after
Christmas.”
VI.

(Compl. ¶ 43 (emphasis in original).)

Commissary and Food Service Claims
With regard to the claims concerning the commissary,

Plaintiffs

allege

substance,

but

is

that

“[t]he

dominated

commissary

with

pastries, cakes, and candy bars.”

sugary

serves

no

food

carbohydrate

(Compl. ¶ 49.)

of

loaded

Plaintiffs also

complain that the snacks that are being sold at the commissary “at
highly inflammatory prices” and allege that the company that
supplies these snack products “is owned by the Sheriff, or a close
friend or relative, and is a company which he financially benefits
from.”

(Compl. ¶¶ 49-50.)
Plaintiffs also claim that “[e]very night for dinner . .

. the kitchen . . . serves nearly frozen vegetables, uncooked,
unedible peas and carrots, which have caused dental damage to
11

Plaintiffs as a result of biting into hardened vegetables.”
(Compl. ¶ 51 (emphasis in original).)
“lost

a

filling

and

cracked

Defendants[’] negligence.”

a

Kalamaras claims to have

tooth

(Compl. ¶ 51.)

as

a

result

of

the

Plaintiffs also claim

that the foods served “do not meet the recommended caloric daily
values of the Department of Health, and must be investigated.”
(Compl. ¶ 51.)
VII.

Claims Challenging the Confiscation of Reading Materials
Plaintiffs allege that, on December 1, 2015 “Sheriff

Michael Sposato came to the BMU Housing Unit and walked around
looking into inmates cells. His response was: (Plaintiff Kalamaras
was in Cell #7): ‘What the fuck is this a vacation?
motherfuckers reading books?

Why are these

By the end of today, I want every

cell searched and all personal books confiscated!’” (Compl. ¶ 52.)
Shortly thereafter, Plaintiffs allege that “Sheriff Sposato ordered
his ‘Emergency Response Team’ to extract each Plaintiff (Kalamaras
and others) from their cells [and] they confiscated every personal
reading book.”

(Compl. ¶ 53.)

Plaintiffs contend that the BMU

Rules and Regulations sheet permits inmates to have “five personal
reading books” and that “[t]he denial of everyday reading books is
a highly intrusive and invasive seizure and a denial of a primitive
right to read . . . and a Constitutionally protected 1st Amendment
Right . . . .”

(Compl. ¶¶ 53-54.)

12

VIII.

Claims Challenging the Disciplinary Appeal Procedure
Plaintiffs complain that “[t]he appeal procedures which

allow

for

due

process

protection

and

redress

by

the

Chief

Administrative Officer (Defendant Captain Rogers) and the New York
State

Commission

of

unconstitutional.”
appeals

forms

Corrections

(Compl. ¶ 55.)

[are]

given

to

is

nonexistent

and

Plaintiffs allege that “no

detainees”

(Compl.

¶

56)

and

information and instructions on how to appeal is not provided at
the

conclusion

Plaintiffs

of

a

Kalamaras,

disciplinary
Hooks,

and

hearing
Bell

(Compl.

each

allege

¶¶

57-58).

that

they

utilized the appeal process, got “no reply, appeal decision, or
amended disposition as a result indicating only one conclusion: The
Appeal

Process

Does

Not

Exist.”

(Compl.

¶

59

(emphasis

in

original).)
IX.

Claims Alleging Physical Assault
Plaintiffs Kalamaras and Hooks also allege that they were

each physically assaulted by corrections officers at the Nassau
Jail.

Kalamaras claims that, on December 28, 2015, he “was

seriously assaulted by Defendant Officer John Doe, Badge #2574,
while Seargant [sic] Marichal and Louis Kurzner (Liutenant) [sic]
stood and watched.”

(Compl. at 39.)

While handcuffed and seated

on the floor, Kalamaras claims to have been “blindsided” by Officer
#2574 who “punched him repeatedly with a closed fist in the left
side of his face.”

(Compl. at 39.)
13

Also on December 28, 2015,

Hooks alleges that he “was repeatedly struck by Officer John Doe,
Badge #2901.”

(Compl. at 39.)

Plaintiffs also allege that on

December 27, 2015, an unnamed inmate kitchen worker advised the
other inmates not to drink from the juice pitcher because he has
observed “C.O.’s #2901 and #2574 urinating in the juice.”

(Compl.

at 39.
Based on the foregoing, Plaintiffs seek injunctive and
monetary relief.

Among other things, Plaintiffs seek “an overhaul

of the Sheriff’s unlawful customs, policies, and procedures . . .
[including] an injunction to compel the Sheriff’s Department of
Nassau County to cease its contractual relationship with Armor . .
. .” (Compl. ¶ 68.) Plaintiffs also seek an injunction compelling
the Defendants to “cease racial and bias-based profiling of inmates
hused in B2B and BMU, and D2D . . . ” and to “reform and
reconstruct[ ] the law library policies, customs, and procedures.”
(Compl. ¶ 69.)

Plaintiffs seeks to recover a monetary damages

award in total sum of $500 million.

(Compl. at 40.)

DISCUSSION
I.

In Forma Pauperis Applications
Upon review of Plaintiffs’ declarations in support of

their applications to proceed in forma pauperis, the Court finds
that Plaintiffs are qualified to commence this action without
prepayment of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore, Plaintiffs’ requests to proceed in forma pauperis are
14

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
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., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
15

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.

A Class Action Cannot be Brought Pro Se
Because Plaintiffs are proceeding pro se, they cannot

represent anyone other than themselves.

See, e.g., Moore v.

T–Mobile USA, 10–CV–0527, 2011 WL 609818, *6 (E.D.N.Y. Feb. 15,
2011) (“[Plaintiff] cannot convert this case into a class action
because he is proceeding pro se, and a pro se litigant cannot
represent anyone other than himself or herself.”) (citing Cheung v.
Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.
1990)); see also Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.
1998) (“because pro se means to appear for one’s self, a person may
not appear on another person’s behalf in the others cause”); 5 JAMES
WM. MOORE

ET AL.,

MOORE’S FEDERAL PRACTICE § 23.25[2][c][v] (3d ed. 2016)

(“pro se class representative cannot adequately represent the
interests

of

Accordingly,

other
to

the

class

members.”)

extent

that

(citations

Plaintiffs

omitted).
request

certification, such request is DENIED.
IV.

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
16

class

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)).
A.

Claims Against County Executive Mangano, Lt. Doe, #70;
Cpl. Hamilton, Capt. Donahue, Comm’r. of Corrections,
Mailroom Supervisor, Officer Simpson, Nurse Jones,
Undersheriff Doe, Deputy Undersheriff Doe
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
17

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).
Here, Plaintiffs’ Complaint does not include any factual
allegations sufficient to demonstrate personal involvement by any
of these Defendants regarding the events alleged in the Complaint.
In fact, apart from the caption, none of these Defendants except
for County Executive Mangano is again mentioned in the body of the
Complaint.

(See generally, Compl.)

Although County Executive

Mangano is referenced in the Complaint, Plaintiffs allege only, in
conclusory fashion, that the other Defendants are “under Defendant
Mangano’s control and direction.”

(Compl. ¶ 1.)

With regard to

the Defendants who hold supervisory positions, including County
Executive Mangano, it appears that Plaintiffs seek to impose
liability against them solely based on the supervisory position
they hold.

Wholly absent, however, are any allegations sufficient

to establish any personal involvement by any of these Defendants in
the unlawful conduct of which Plaintiffs complain.

A supervisor

cannot be liable for damage under Section 1983 solely by virtue of
being

a

supervisor

because

liability under Section 1983.

there

is

no

respondeat

superior

Richardson v. Goord, 347 F.3d 431,

435 (2d Cir. 2003). Accordingly, Plaintiffs’ claims against County
18

Executive Mangano; Lt. Doe, #70; Cpl. Hamilton; Capt. Donahue;
Comm’r. of Corrections; Mailroom Supervisor; Officer Simpson; Nurse
Jones; Undersheriff Doe; and Deputy Undersheriff Doe are not
plausible and are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§§ 1915(e)(2)(b)(ii); 1915A(b).
B.

Commissary and Food Service Claims
1.

Commissary Pricing and Selection

Plaintiffs complain that the Jail Commissary does not
sell any nutritious foods and is overpriced. However, since “there
is no constitutional right to access a prison commissary,” Mitchell
v. City of New York, 10-CV-4121, 2011 WL 1899718, at * 2 (S.D.N.Y.
May 13, 2011); see also Davis v. Shaw, 08-CV-0364, 2009 WL 1490609,
at * 1 (S.D.N.Y. May 20, 2009), “the prices and product selections
offered by prison food vendors cannot give rise to a constitutional
violation” Mitchell, 2011 WL 1899718, at *2; see also Miller v.
County of Nassau, 12–CV–4164, 2012 WL 4741592, at * 7 (dismissing
claims regarding commissary pricing and selection pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A).

Accordingly, Plaintiffs’

claims regarding commissary pricing and selection are DISMISSED
WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915 and 1915A for failure
to state a claim for relief.
2.

Food Service Claims

Plaintiffs complain that they are served “nearly frozen
vegetables” and that Kalamaras “lost a filling and cracked a tooth
19

as a result of the defendants[’] negligence.”

(Compl. ¶ 51.)

Plaintiffs also allege that the food served at the Jail does “not
meet the recommended caloric daily values of the Department of
Health.”

(Compl. ¶ 51.)
Pretrial detainees are protected by the Due Process

Clause of the Fourteenth Amendment rather than by the Eighth
Amendment’s prohibition on cruel and unusual punishment, which
applies only to convicted prisoners. Weyant v. Okst, 101 F.3d 845,
856 (2d Cir. 1996) (citing City of Revere v. Mass. Gen. Hosp., 463
U.S. 239, 244, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605 (1093)).

It

is unclear if all of the Plaintiffs were pre-trial detainees or
post-conviction prisoners during the period giving rise to this
claim.

For constitutional purposes, however, the analysis is the

same.

Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) (claims

for deliberate indifference “should be analyzed under the same
standard irrespective of whether they are brought under the Eighth
or Fourteenth Amendment”).
the

states

under

the

The Eighth Amendment, which applies to

Due

Process

Clause

of

the

Fourteenth

Amendment, guarantees freedom from cruel and unusual punishment.
U.S. CONST.,
violation

amend.

with

VIII.

respect

to

To

establish

living

an

Eighth

conditions,

Amendment

prisoners

must

demonstrate “unquestioned and serious deprivation of basic human
needs” or of the “minimal civilized measure of life’s necessities.”
Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L.
20

Ed. 2d 59 (1981). The Supreme Court has identified food, clothing,
shelter, medical care, reasonable safety, warmth, and exercise as
basic human needs.

See Helling v. McKinney, 509 U.S. 25, 32, 113

S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993); Wilson v. Seiter, 501
U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271 (1991).
To establish an Eighth Amendment violation, a plaintiff
must demonstrate both that the challenged condition is serious--the
objective component--and the official who is responsible for the
conduct

acted

component.

with

deliberate

indifference--the

subjective

See Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct.

1970, 1978, 128 L. Ed. 2d 811 (1994); Wilson, 501 U.S. at 303, 111
S. Ct. at 2326.

The objective prong requires the prisoner to

allege a sufficiently serious injury.
F.3d 550, 553 (2d Cir. 1996).

Hathaway v. Coughlin, 99

The Second Circuit has defined a

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

Hathaway, 99

F.3d at 553 (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.”
F.3d at 553.

Hathaway, 99

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.’”
Hathaway, 99 F.3d at 553 (ellipsis and alteration in original)
21

(citing Farmer, 511 U.S. at 835, 114 S. Ct. at 1979).
With regard to Plaintiffs’ claim that Kalamaras “lost a
filling and cracked a tooth” as a result of biting into a “hardened
vegetable” (Compl. ¶ 51), the Court finds that such claim does not
rise to the level of a Constitutional deprivation. Plaintiffs have
not alleged that Kalamaras suffered a sufficiently serious injury
nor have Plaintiffs alleged that any of the Defendants acted with
a sufficiently culpable state of mind.

In addition, Plaintiffs

have failed to adequately plead a claim based on the provision of
food in nutritionally inadequate portions.

Plaintiffs describe

that the food served at the Jail does “not meet the recommended
caloric daily values of the Department of Health.” (Compl. ¶ 51.)
Such allegations do not, however, suggest that Plaintiffs face
immediate danger to their health and well-being based on the
caloric

value

of

their

Coughlin, 725 F.2d 12, 15.

servings

standing

alone.

Robles

v.

See also Mays v. Springborn, 575 F.3d

643, 648 (7th Cir. 2009) (“prison officials cannot be held liable
under the Eighth Amendment unless the prisoner shows [ ] an
objectively serious risk of harm”); McNatt v. Unit Manager Parker,
99-CV-1397, 2000 WL 307000, at *5–6 (D. Conn. Jan. 18, 2000)
(allegation of small food portions, absent evidence that prisoners
suffered ill effects from these reduced portions, fails to state
Eighth Amendment claim) (collecting cases). Similarly, Plaintiffs’
claims that they are often served “nearly frozen vegetables” do not
22

sufficiently allege cruel and unusual punishment as contemplated by
the Eighth Amendment. Accordingly, Plaintiffs’ food service claims
are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915 and
1915A for failure to state a claim for relief.
C.

Law Library Claims
Plaintiffs complain that: (1) the materials available in

Jail’s law library are “completely inadequate and outdated” (Compl.
¶ 13); (2) they are being denied adequate library time due to the
ling wait times to enter the library (Compl. ¶ 12); and (3) BMU
inmates “are not physically permitted to go to the library as all
other inmates do” (Compl. ¶ 22).

These claims, as pled, are

implausible because Plaintiffs have not alleged an actual injury.
Rather, Plaintiffs claim in conclusory fashion that they are being
denied “access to the courts.”

(Compl. ¶ 26.)

The Supreme Court has held that the constitutional right
of access to courts entitles prisoners to either “adequate law
libraries or adequate assistance from persons trained in the law.”
Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed.
2d 72 (1977).

However, prisoners do not have “an abstract,

freestanding right to a law library or legal assistance.”

See

Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L.
Ed. 2d 606 (1996).

To allege a plausible constitutional claim

based on the denial of adequate law library access, the prisoner
must “demonstrate that the alleged shortcomings in the library or
23

legal assistance program hindered his efforts to pursue a legal
claim.”

Lewis, 518 U.S. at 351, 116 S. Ct. at 2180.

Thus, a

prisoner must show “actual injury,” Lewis, 518 U.S. at 349, in that
“‘the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim’--for example,
by demonstrating that he has been unable to file a complaint or has
had a complaint dismissed for failure to observe a technicality.”
Benjamin v. Fraser, 264 F.3d 175, 184 (2d Cir. 2001) (quoting
Lewis, 518 U.S. at 351, 116 S. Ct. 2180); see also Monsky v.
Moraghan, 127 F.3d 243, 247 (2d Cir. 1997).
Here, as is readily apparent, Plaintiffs have made no
allegations regarding any actual injuries they have suffered due to
the allegedly inadequate law library or insufficient access to the
law library at the Jail. Accordingly, the Complaint fails to state
a plausible claim for relief and dismissal is appropriate pursuant
to

28

U.S.C.

§§

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

1915A(b)(1).

Accordingly,

Plaintiffs’ Section 1983 claims concerning the adequacy of and
access to the law library are DISMISSED WITHOUT PREJUDICE.
D.

Claims Challenging the Care Provided by Armor
Plaintiffs allege that “acute care decisions” are made by

the Medical Director, Ms. Marcos, who is allegedly not a doctor,
and without any doctor’s supervision.

(Compl. ¶ 30.)

Plaintiffs

speculate that medical decisions are “based wholly on financially
spending

as

little

as

possible”
24

in

violation

of

their

constitutional rights. (Compl. ¶ 31.) Plaintiffs also allege that
medical staff falsely issue orders of medical need to allow “nearly
a dozen Black men [to] walk around perfectly fine, swinging their
unlawfully issued canes around, and using their own feet to propel
their wheelchairs . . . .”

(Compl. ¶ 31, at 17.)

Further,

Plaintiffs allege that Kalamaras visited the medical unit on
October 28, 2015 after experiencing “a side effect from major grand
mal siezures [sic]” and, although he was paralyzed in his right
leg, he was prescribed only physical therapy and steroid treatment.
(Compl. ¶ 31, at 17.) Because Kalamaras was not prescribed a wheel
chair, he allegedly was forced to “drag his leg around the medical
unit” and was subjected to ridicule.
1.

(Compl. ¶ 31, at 17.)

Liability of Armor

Armor is “a private company contracted to perform medical
services for inmates at the Nassau County Correctional Center.”
See Edwards v. Armor Corr. Health Svcs., No. 15–CV–4791, 2015 WL
9050783, at *3 (E.D.N.Y. Dec. 14, 2015) (citing Gaines v. Armor
Health Care, Inc., No. 12–CV–4666, 2012 WL 5438931, at *3 (E.D.N.Y.
Nov.

2,

2012)

well-established

(additional
that

citation

“[a]nyone

whose

omitted)).
conduct

It
is

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
25

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 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 N.Y., 119 F. Supp. 2d
232, 275 (E.D.N.Y. 2000) (collecting cases).
Though

thin,

in

light

of

their

pro

se

status

and

affording the pro se Complaint a liberal construction, the Court
finds that the allegations in the Complaint sufficiently allege the
existence

of

an

unconstitutional

policy,

practice,

relating to the medial care provided at the Jail.

or

custom

In particular,

Plaintiffs allege a policy and practice of acute medical care
decisions being made by non-medical personnel together with a
policy and practice of declining to provide necessary medical
treatment based on cost. However, Plaintiffs have failed to allege
a plausible claim concerning the adequacy of medical care provided
by Armor for the reasons that follow.
2.
To

Adequacy of Medical Care Claims
state

a

claim

of

deliberate

indifference

to

an

inmate’s medical needs, a plaintiff must plead two elements: (1)
that the alleged deprivation of medical care was “sufficiently
serious”

and

(2)

that

the

defendant
26

acted

with

deliberate

indifference, i.e., “the charged official must [have] act[ed] with
a sufficiently culpable state of mind.”

See Salahuddin v. Goord,

467 F.3d 263, 279-80 (2d Cir. 2006).

To determine whether a

deprivation is “sufficiently serious,” the Court must make two
inquires.

The first inquiry is whether “the prisoner was actually

deprived of adequate medical care,” keeping in mind that “the
prison official’s duty is only to provide reasonable care.”
Salahuddin, 467 at 279.

The second inquiry, which is an objective

question, “requires the court to examine how the offending conduct
is inadequate and what harm, if any, the inadequacy has caused or
will likely cause the prisoner.” Salahuddin, 467 at 280.
The second requirement of a deliberate indifference
claim--i.e., that “the charged official . . . act[ed] with a
sufficiently culpable state of mind”--is a subjective question.
Salahuddin, 467 at 280.

“[T]he official’s state of mind need not

reach the level of knowing and purposeful infliction of harm; it
suffices if the plaintiff proves that the official acted with
deliberate indifference to inmate health.” Salahuddin, 467 at 280.
Deliberate indifference is “equivalent to subjective recklessness,
as the term is used in criminal law.”
other

words,

“[t]his

mental

state

Salahuddin, 467 at 280.
requires

that

the

In

charged

official act or fail to act while actually aware of a substantial
risk that serious inmate harm will result.”
280.

Salahuddin, 467 at

However, “the risk of harm must be substantial and the
27

official’s actions more than merely negligent.”
Here,

Plaintiffs

have

not

Id.

sufficiently

alleged

a

deliberate indifference claim against any of the Defendants.
Wholly absent from the Complaint are any allegations that any of
the Plaintiffs were deprived of medical care that was “sufficiently
serious” nor have they alleged that any of the Defendants acted
with the requisite state of mind.

To the extent that Kalamaras

complains that he was experiencing a “side effect” from a grand mal
seizure and required a wheelchair prescription, he acknowledges
that he was prescribed physical therapy and steroid treatment.
Although

Plaintiffs

may

disagree

with

the

medical

treatment

provided, such disagreement does not give rise to a deliberate
indifference claim.

See Jandres v. Armor Health Care Inc., 12-CV-

3132, 2014 WL 1330655, at *5 (E.D.N.Y. Mar. 31, 2014) (dismissing
deliberate

indifference

claims

because

“a

disagreement

in

treatment, [ ] does not raise a constitutional violation”) (citing
Flemming v. City of N.Y., No. 03–CV–0662, 2009 WL 3174060, at *3
(E.D.N.Y. Sept. 30, 2009) (“Whether an MRI should have been done is
a classic example of a matter for medical judgment as to the
appropriate course of treatment and is not actionable under the
Eighth

Amendment.”

(internal

quotation

marks

and

citation

omitted)); see also Wright v. Genovese, 694 F. Supp. 2d 137, 155
(N.D.N.Y. 2010).

Moreover, to the extent that Plaintiffs seek to

challenge the medical care provided to other inmates--i.e., the
28

allegations that medical staff falsely issued orders of medical
need to other inmates, they cannot pursue such claims since pro se
litigants may only represent themselves.

See supra at 15-16.

Accordingly, Plaintiffs have not alleged a plausible deliberate
indifference claim and such claims against Armor and Morcos are
DISMISSED

WITHOUT

PREJUDICE

pursuant

to

28

U.S.C.

§§ 1915(e)(2)(b)(ii), 1915A(b)(1).
E.

Claims Challenging the Mail Service
With regard to the claims concerning mail, Plaintiffs

generally contend that the mail employees “have stolen, destroyed,
discarded, and withheld federally protected United States mail.”
(Compl. ¶ 39.)

Plaintiffs’ also allege that the mail employees

“fail to properly return the return receipt mail slips . . . .”
(Compl. ¶ 39.)

For example, Plaintiffs claim that Kalamaras

attempted to mail a “parcel” to “Channel 7 News” but the parcel was
“lost” after Kalamaras tried to mail it certified mail, return
receipt requested.

(Compl. ¶ 40.)

Plaintiffs claim that this

parcel was never taken to the post office, and rely on the fact
that the return receipt card Kalamaras received was not signed by
the receiving party and had no post office bar code markings or
tracking number on it.

(Compl. ¶ 40.)

Finally, Plaintiffs claim

that mail is routinely withheld for “problem inmate housing areas
(B2B, BMU, EIG).”

(Compl. ¶ 42.)

For example, Plaintiffs allege

that, following a fight involving two inmates on B2B tier on
29

December 26, 2015, Officer Trotta withheld mail for all eighteen
inmates on the tier and stated, “[y]ou guys really think you’re
getting mail after this?” (Compl. ¶ 43.) Although they complained
to

Doyle,

he

is

alleged

to

have

done

nothing

and

therefor

Plaintiffs allege violation of their “Federal Constitutional Right
to receive mail from their families, especially the day after
Christmas.”

(Compl. ¶ 43.)

An inmate’s right to send and receive both legal and
nonlegal mail is protected by the First Amendment, although prison
officials may regulate that right if the restrictions they employ
are “‘reasonably related to legitimate penological interests.’”
Thornburgh v. Abbott, 490 U.S. 401, 409, 109 S. Ct. 1874, 104 L.
Ed. 2d 459 (1989) (quoting Turner v. Safley, 482 U.S. 78, 89, 107
S. Ct. 2254, 96 L. Ed. 2d 64 (1987)); see also Johnson v. Goord,
445 F.3d 532, 534 (2d Cir. 2006) (holding that prisoners do have a
right--albeit a limited one--to send and receive mail) (citation
omitted).

Regulations limiting a prisoner’s right to send and

receive non-legal mail “[are] valid if [they are] reasonably
related to legitimate penological interests.”

Rodriguez v. James,

823 F.2d 8, 12 (2d Cir. 1987) (quoting Turner, 482 U.S. at 89, 107
S. Ct. at 2261). Thus, “[t]he regulation of inmates’ mail by state
prison

officials

.

.

.

is

a

matter

of

internal

prison

administration with which [courts] will not interfere, absent a
showing of a resultant denial of access to the courts or of some
30

other basic right retained by a prisoner.”

Argentine v. McGinnis,

311 F. Supp. 134, 137 (S.D.N.Y. 1969) (citations omitted).
Here, Plaintiffs’ allegations relate to non-legal mail
and are thus subject to dismissal because Plaintiffs have not
alleged a denial of access to the courts or of some other basic
right. Rather, Plaintiffs complain that personal mail was withheld
on the day after Christmas 2015 and that a parcel intended for
delivery to Channel 7 News was “lost.”
Plaintiffs

have

interference.

not

alleged

a

(Compl. ¶¶ 39-40.)

pattern

or

practice

of

And,
mail

See Garraway v. Griffin, No. 12–CV–0924S, 2013 WL

2105903, at *4 (W.D.N.Y. May 8, 2013) (the prisoner’s conclusory
allegation that his mail was intercepted failed to state an
actionable First Amendment claim).

Accordingly, Plaintiffs have

failed to allege a plausible Section 1983 claim concerning the mail
service at the Jail and their generalized, speculative allegation
that mail employees have “have stolen, destroyed, discarded, and
withheld federally protected United States mail” (Compl. ¶ 39) does
not plausibly allege a claim for relief. Thus, Plaintiffs’ Section
1983 claims relating to the mail service at the Jail are DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A(b)(1).

31

F.

Claims Challenging the: (1) Sanitary Conditions; (2)
Treatment of Inmates in the BMU; (3) Confiscation of
Reading Materials; (4) Disciplinary Appeals Procedure;
and (5) Physical Assault on Inmates Kalamaras and Hooks
Though thin, the Court declines to sua sponte dismiss

Plaintiffs’ claims challenging the: (1) Sanitary Conditions; (2)
Treatment of Inmates in the BMU; (3) Confiscation of Reading
Materials; (4) Disciplinary Appeals Procedure; and (5) Physical
Assault on Inmates Kalamaras and Hooks. At this early stage of the
proceeding,

the

Second

Circuit

instructs

that

“[s]ua

sponte

dismissal of pro se prisoner petitions which contain non-frivolous
claims without requiring service upon respondents or granting leave
to amend is disfavored by this Court.”

McEachin, 357 F.3d at 200

(internal quotation marks and citation omitted); see also Benitez
v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam) (“Sua
sponte dismissal of a pro se complaint prior to service of process
is a draconian device, which is warranted only when the complaint
lacks an arguable basis in law or fact.

Where a colorable claim is

made out, dismissal is improper prior to service of process and the
defendants’ answer.”) (internal quotation marks and citations
omitted).

Accordingly, the Court Orders service of the Summonses

and Complaint upon the remaining Defendants by the United States
Marshal Service (“USMS”) forthwith.
V.

Application for the Appointment of Pro Bono Counsel
Unlike criminal defendants, civil litigants do not have
32

a constitutional right to the appointment of counsel.

However,

pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an
attorney to represent any person unable to afford counsel.”

In

deciding a motion for appointment of counsel, “the district judge
should first determine whether the indigent’s position seems likely
to be of substance.”
Cir. 1986).

Hodge v. Police Officers, 802 F.2d 58, 61 (2d

A position is likely to be of substance if it appears

to the court that the plaintiff “appears to have some chance of
success . . . .”

Hodge, 802 F.2d at 60-61.

Where a plaintiff

satisfies this threshold requirement, the Second Circuit instructs
that
the court should then consider the indigent’s
ability to investigate the crucial facts,
whether conflicting evidence implicating the
need for cross-examination will be the major
proof presented to the fact finder, the
indigent’s ability to present the case, the
complexity of the legal issues and any special
reason in that case why appointment of counsel
would be more likely to lead to a just
determination.
Hodge, 802 F.2d at 61-62.

These factors are not restrictive and

“[e]ach case must be decided on its own facts.”

Id. at 61.

Notwithstanding the requirement that pleadings drafted by
a pro se litigant, are to be construed liberally and interpreted to
raise the strongest arguments they suggest, see Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994), the Court, upon careful review of
the facts presented herein and in light of the factors required by
law as discussed above, finds that the appointment of counsel is
33

not warranted at this time.

Even assuming that Hodge’s threshold

requirement is satisfied, the record reflects that the legal issues
presented are not unduly complex and that Plaintiffs can adequately
prosecute their claims pro se.

Based on this review, the motion

from Kalamaras for appointment of pro bono counsel is DENIED
WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when the action is ready
for

trial,

if

warranted

at

that

time.

It

is

Plaintiffs’

responsibility to retain an attorney or press forward with this
lawsuit pro se.

See 28 U.S.C. § 1654.
CONCLUSION

For the reasons set forth above, Plaintiffs’ application
to proceed in forma pauperis is GRANTED, however Plaintiffs’ claims
challenging the Commissary pricing and selection and food service
are DISMISSED WITH PREJUDICE.

Plaintiffs’ claims against County

Executive Mangano; Lt. Doe, #70; Cpl. Hamilton; Capt. Donahue;
Comm’r. of Corrections; Mailroom Supervisor; Officer Simpson; Nurse
Jones; Undersheriff Doe; Deputy Undersheriff Doe; Armor; and Morcos
are sua sponte DISMISSED WITHOUT PREJUDICE for failure to state a
claim

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B)(ii)-(iii).

In

addition, Plaintiffs’ claims challenging the: (1) law library; (w)
care provided by Armor; and (3) mail service are also sua sponte
DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii).

Plaintiffs’ remaining

claims shall proceed and the Clerk of the Court is directed to
34

issue Summonses for the remaining Defendants and to forward the
Summonses together with copies of the Complaint and this Order to
the USMS for service upon the remaining Defendants forthwith.
The application for the appointment of pro bono counsel
is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when this case
is ready for trial if so warranted at that time.
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 update the mailing
address for Kalamaras in accordance with this Order (see, supra
n.1) and to mail a copy of this Order to Plaintiffs at their last
known addresses.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: August
2 , 2016
Central Islip, New York

35