Pena et al v. Armor Correctional Health, Inc. et al
MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiffs' application to proceed in forma pauperis is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE for f ailure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b) as against the Sheriff's Department, the Grievance Committee, NYSCOC, NYSDOCS, and the NYS Inspector General's Office. Plaintiffs' remaining c laims are 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) and WITH LEAVE TO FILE AN AMENDED COMPLAINT. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) t hat 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 Plaintiffs at their last known addresses. So Ordered by Judge Joanna Seybert on 8/24/2016. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EMMANUAL PENA, THOMAS D. BRIEL,
MEMORANDUM & ORDER
ARMOR CORRECTIONAL HEALTH INC.;
N.Y. STATE COMMISSION OF CORRECTIONS;
PRISON OVERSEER THOMAS BELLEIN; N.Y.
STATE DEP’T OF CORRECTIONS, NASSAU
COUNTY CORRECTIONAL CENTER OVERSEER
MICHAEL SPOSATO; INSPECTION [SIC]
GENERAL OF N.Y.; ATTORNEY GENERAL;
NASSAU CO. GRIEVANCE COMMITTEE; N.Y.S
INSPECTOR GENERAL’S OFFICE; NASSAU
COUNTY SHERIFF’S DEPARTMENT; and
Emmanuel Pena, pro se
Downstate Correctional Facility
121 Red Schoolhouse Road
P.O. Box F
Fishkill, NY 12523
Thomas D. Briel, pro se1
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
Since the time the Complaint was filed, Briel has apparently
been discharged from the Nassau Jail and has not provided the
Court with a new address. See Briel v. Armor Corr. Health Inc.,
et al., 16-CV-00761, Docket Entry Nos. 11 and 13, Mail sent to
Briel at the Nassau Jail was returned on May 4, 2016 and May 20,
2016 and marked “Return to Sender”, “Discharged.” 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.
SEYBERT, District Judge:
Emmanuel Pena (“Pena”) and Thomas D. Briel (“Briel” and together,
“Plaintiffs”) filed a Complaint in this Court pursuant to 42 U.S.C.
§ 1983 (“Section 1983”) against Armor Correctional Health, Inc.
(“Armor”), the N.Y. State Commission of Corrections (“NYSCOC”),
“Prisoner Overseer ‘Thomas Bellein’” (“Bellein”), N.Y. State Dep’t
of Corrections (“NYSDOCS”), Nassau County Correctional Center (the
Inspection [sic] General of N.Y. (“NY Inspector General”), Attorney
General (“Attorney General”), Nassau County Grievance Committee
(“Grievance Committee”), N.Y.S. Inspector General’s Office (“NYS
Inspector General’s Office”), Nassau County Sheriff’s Department
collectively, “Defendants”), accompanied by an application to
proceed in forma pauperis signed by each Plaintiff.
application to proceed in forma pauperis, the Court finds that
Plaintiffs are qualified to commence this action without prepayment
of the filing fee.
See 28 U.S.C. § 1915(a)(1).
Plaintiffs’ request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b) for
failure to state a claim for relief.
Plaintiffs’ handwritten Complaint is submitted on the
Court’s Section 1983 complaint form and has an additional twelve
pages of attachments. According to the Complaint, which is hardly
a model of clarity, Plaintiffs are being subjected to cruel and
unusual punishment and denied due process and equal protection in
violation of their state and federal constitutional rights.
Complaint largely lists generalized grievances rather than specific
events that involved each Plaintiff.
Plaintiffs complain that the living conditions at the
Jail are unsanitary because, for example, the “showers are moldy”
and have “bacteria and fungus.”
(Compl. at 8.)
describe that there are “little white worms in the water” and that
there are “ants, fleas, roaches, . . . worms, flies [and] magets
[sic]” in cells and walls.
(Compl. at 8-9.)
that the “steel stairs to the second floor tiers have never been
power washed, cleaned, painted and rewelded where broken.” (Compl.
According to the Complaint, “hot water showers daily are
‘NOT’ provided; Razors are ‘NOT’ provided daily; [and] Barbaring
[sic] tools ‘clippers’ are not available daily.”
(Compl. at 10
(emphasis in original).) In addition, Plaintiffs allege that there
are “no safety showers for people with back and neck injuries” and
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purpose of this Memorandum and
there are no non-slip strips or hand railings in the showers.
(Compl. at 11.)
Plaintiffs also complain that the portions of food served
to inmates are “improper”, that the food is served cold, and that
the food carts and trays are unsanitary.
(Compl. at 8-10.)
addition, Plaintiffs allege that there is “[n]o shelter from rain,
snow, hail and other adverse weather during recreation” and that
“every time it rains, . . . water comes through the roofs, cielings
[sic] and through the walls into cells or outside of cells.”
(Compl. at 8-9.) Plaintiffs also allege that the medical treatment
provided to inmates is inadequate because inmates are denied
medication that had been prescribed for them before incarceration.
(Compl. at 10.)
Further, Plaintiffs allege that the grievance procedures
are “inadequate” and that there is a “failure to respond” to inmate
(Compl. at 10.)
Moreover, the law library and access
thereto is allegedly “unconstitutional.” (Compl. at 11.) Finally,
Plaintiffs complain that the “air filtration system is unsanitary”
and that the Jail’s fire sprinkler systems are “never tested” and
that they have seen “little worms fall out.”
(Compl. at 9.)
As a result of the foregoing, Plaintiffs seek to recover
Constitutions and Federal Constitutions.”
(Compl. at 14, 17 ¶ V.)
In Forma Pauperis Application
Upon review of Plaintiffs’ declaration in support of
their application 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’ request to proceed in forma pauperis is
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
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
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).
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).
“‘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.
678 (quoting Twombly, 550 U.S. at 555).
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).
To state a claim
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. Cty. of Suffolk, 693 F. Supp. 2d
217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)).
In order to state a claim for relief under Section 1983
against an individual defendant, a plaintiff must allege the
personal involvement of the defendant in the alleged constitutional
Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).
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.”
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
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.
(“[Plaintiff’s] claims against [Defendant] failed as a matter of
See, e.g., Hemmings v. Gorczyk, 134 F.3d 104, 109 n.4
(2d Cir. 1998).
With these standards in mind, the Court considers
Plaintiffs’ claims against the Defendants.
Claims Against Bellein, Sheriff Sposato, NY Inspector
General, and the Attorney General
As set forth above, a plausible Section 1983 claim must
allege the personal involvement of the defendant in the alleged
See supra at 7; Rivera, 655 F. Supp. 2d
at 237; see also Warren v. Goord, 476 F. Supp. 2d 407, 413 (S.D.N.Y
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
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).
allegations sufficient to demonstrate personal involvement by any
of the individual Defendants, namely Bellein, Sheriff Sposato, the
NY Inspector General, and the Attorney General, regarding the
events alleged in the Complaint and it appears that Plaintiffs seek
to impose liability against these individuals based solely on the
supervisory positions they hold.
Wholly absent from the Complaint
involvement by any of these individuals in the unlawful conduct of
which Plaintiffs complain.
And, apart from Bellein and Sheriff
Sposato, none of these individuals are even included in the body of
Accordingly, Plaintiffs’ claims against Bellein,
Sheriff Sposato, the NY Inspector General, and the Attorney General
are not plausible and are DISMISSED WITHOUT PREJUDICE for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
Claims Against Sheriff’s Department and Grievance
departments that are merely administrative arms of a municipality
municipality and, therefore, cannot sue or be sued.”
Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002);
see also Hawkins v. Nassau Cty. Corr. Fac., 781 F. Supp. 2d 107,
109 n.1 (E.D.N.Y. 2011) (dismissing claims against Nassau County
Jail because it is an “administrative arm[ ] . . . of the County of
Nassau, and thus lacks the capacity to be sued as a separate
entity”) (internal quotation marks and citations omitted); Melendez
v. Nassau Cty., 10–CV–2516, 2010 WL 3748743, at *5 (E.D.N.Y.
Sept. 17, 2010) (dismissing claims against the NCSD because it
lacks the capacity to be sued).
Thus, Plaintiffs’ claims against
the Sheriff Department and Grievance Committee are not plausible
because these entities have no legal identity separate and apart
from Nassau County.
Accordingly, these claims are DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A(b).
Claims Against Nassau County
It is well-established that a municipality such as Nassau
County cannot be held liable under § 1983 on a respondeat superior
See Monell v. Dep’t of Soc. Servcs. of N.Y. City, 436 U.S.
658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Roe v.
City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
To prevail on
a Section 1983 claim against a municipality, a plaintiff must show
“that ‘action pursuant to official municipal policy’ caused the
alleged constitutional injury.”
Cash v. Cty. of Erie, 654 F.3d
324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S. 51,
60, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)); see also
Monell, 436 U.S. at 690–91 (“local governments . . . may be sued
for constitutional deprivations visited pursuant to governmental
‘custom’ even though such a custom has not received formal approval
through the body’s official decisionmaking channels”).
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
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
Moray v. City of Yonkers, 924 F. Supp. 8, 12
(S.D.N.Y. 1996) (citations omitted).
Here, even affording the pro se Complaint a liberal
construction, there are no factual allegations from which the Court
could reasonably construe a plausible Section 1983 cause of action
against Nassau County. Accordingly, Plaintiffs’ Section 1983 claim
against Nassau County is thus DISMISSED WITHOUT PREJUDICE as
against Nassau County pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii);
Claims Against Armor
Armor Correctional Health, Inc. is “a private company
contracted to perform medical services for inmates at the Nassau
County Correctional Center.”
See Gaines v. Armor Health Care,
Inc., No. 12–CV–4666, 2012 WL 5438931, at *3 (E.D.N.Y. 2012)
(citing Briel v. Sposato, No. 12–CV–2868, 2012 WL 3697806, at *5
(E.D.N.Y. Aug. 21, 2012)).
It is well-established that “[a]nyone
whose conduct is fairly attributable to the state can be sued as a
state actor under § 1983.”
Filarsky v. Delia, ––– U.S. ––––, 132
S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012) (internal quotation
marks and 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 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
Here, as is readily apparent, Plaintiffs have 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 Plaintiffs’ constitutional rights were violated
DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Claims Against NYSCOC, NYSDOCS, and the NYS Inspector
The Eleventh Amendment bars suits brought by a state’s
own citizens in federal court.
Woods v. Rondout Valley Cent. Sch.
Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Alden
v. Maine, 527 U.S. 706, 712, 119 S. Ct. 2240, 2246, 144 L. Ed. 2d
As agencies or arms of the State of New York, the
NYSCOC, the NYSDOCS, and the NYS Inspector General’s Office are
immune from suit under the Eleventh Amendment.
See Kentucky v.
Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114
(1985); Garcia v. Div. of Parole Exec. Dept., No. 09-CV-2045, 2009
WL 2392160, at *1 (E.D.N.Y. August 3, 2009) (state agencies such as
the Division of Parole “‘are entitled to assert the state’s
Eleventh Amendment immunity where, for practical purposes, the
agency is the alter ego of the state and the state is the real
party in interest’”) (quoting Santiago v. N.Y.S. Dep’t of Corr.
Serv., 945 F.2d 25, 28 n. 1 (2d Cir. 1991)); Warren v. Sawyer, et
al., 15-CV-0591, 2016 WL 1558460, at *2 (N.D.N.Y. Apr. 15, 2016)
(dismissing Section 1983 claims for money damages against the
NYSDOCCS as barred by the Eleventh Amendment); Hallett v. N.Y.
State DOCS, 109 F. Supp. 2d 190, 197 (S.D.N.Y. 2000) (citations
The Supreme Court instructs that the Eleventh
Amendment gives a state government immunity from suit, not just
from liability. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506
U.S. 139, 144, 113 S. Ct. 684, 687, 121 L. Ed. 2d 605 (1993)
As such, Plaintiffs’ claims against these
Defendants are barred by the Eleventh Amendment to the Constitution
and are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b).4
Similarly, Plaintiffs’ claims for damages against state
employees sued in their official capacities are barred by the
Eleventh Amendment. Graham, 473 U.S. at 165-167, and n. 14,
(suit for damages against state officer in official capacity is
barred by the Eleventh Amendment); Darcy v. Lippman, 356 F. App’x
434, 436-37 (2d Cir. 2009) (“Eleventh Amendment likewise bars
[plaintiff] from pursuing a claim for damages against the
individual defendants in their official capacities.”).
The Court notes that the Plaintiffs’ Section 1983 claims
against the individual State Defendants in their official
Leave to Amend
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, Plaintiffs are GRANTED
LEAVE TO FILE AN AMENDED COMPLAINT in accordance with this Order.
confinement, the Second Circuit instructs: “To demonstrate that the
punishment, the plaintiff must satisfy both an objective test and
a subjective test.”
Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.
1996) (citation omitted).
To satisfy the objective element, “the
plaintiff must demonstrate that the conditions of his confinement
result in unquestioned and serious deprivations of basic human
Id. (internal quotation marks and citation omitted).
“[T]he inmate must show that the conditions, either alone or in
combination, pose an unreasonable risk of serious damage to his
capacities must be dismissed for the additional reason that
“[n]either a state nor one of its agencies nor an official of
that agency sued in his or her official capacity is a ‘person’
under § 1983.” Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998);
see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71,
109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989).
Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)
With respect to the subjective element,
“plaintiff must demonstrate that the defendants imposed those
conditions with deliberate indifference.”
Jolly, 76 F.3d at 480
(internal quotation marks and citations omitted).
deliberate indifference, [t]he prison official must know of, and
disregard, an excessive risk to inmate health or safety.”
717 F.3d at 125 (internal quotation marks and citation omitted).
Plaintiffs are directed that any Amended Complaint shall
be filed within thirty (30) days from the date of this Order, shall
be titled “Amended Complaint,” and shall bear the same docket
number as this Order, No. 16-CV-01554(JS)(GRB).
Therefore, all claims not dismissed with
prejudice herein and allegations Plaintiffs wish to pursue should
be included in the Amended Complaint.
For the reasons set forth above, Plaintiffs’ application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b) as
against the Sheriff’s Department, the Grievance Committee, NYSCOC,
NYSDOCS, and the NYS Inspector General’s Office.
remaining claims are sua sponte DISMISSED WITHOUT PREJUDICE for
§§ 1915(e)(2)(B)(ii), 1915A(b)(1) and WITH LEAVE TO FILE AN AMENDED
COMPLAINT. Any Amended Complaint shall be filed within thirty (30)
Complaint,” and shall bear the same docket number as 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
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 Plaintiffs at their last known addresses.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
24 , 2016
Central Islip, New York
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