Hubsher v. Nassau County et al

Filing 59

MEMORANDUM AND ORDER granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim; denying 38 Motion to Strike; granting 53 Motion for Leave to File. The County Defendant's motion to dismiss is GRANTED I N PART and DENIED IN PART. (Docket Entry 19). Only the municipal liability claim against Nassau County remains unless Plaintiff chooses to file an Amended Complaint. The Court DENIES Plaintiff's motion to strike the County Defendants' reply papers, (Docket Entry 38), but GRANTS Plaintiff leave to file an Amended Complaint consistent with this Order, (Docket Entry 53). The Court declines to issue a certificate of appealability because the Petitioner has not made a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c)(2). The Court also certifies that any appeal of this Order would not be taken in good faith, and thus his in forma pauperis status is DENIED for the purposes of any appeal. The Clerk of the Court is respectfully directed to mail a copy of this Order to the pro se litigant. So Ordered by Judge Joanna Seybert on 9/28/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
MARSHALL HUBSHER,
Plaintiff,
-against-

MEMORANDUM & ORDER
16-CV-5842(JS)(ARL)

NASSAU COUNTY; ARMOR CORRECTIONAL
HEALTH SERVICES; MICHAEL SPOSATO,
Sheriff Sposato as Official of
Nassau County Jail and the
individual; and Dr. C. MARCOS,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Marshall Hubsher, pro se
16-R-2681
Mid-State Correctional Facility
PO Box 2500
Marcy, New York 13403
For Defendants:
Nassau County and
Sheriff Sposato

Dale Nicholson McLaren, Esq.
John J. Doody, Esq.
Lewis, Brisbois, Bisgaard & Smith LLP
77 Water Street, 21st Floor
New York, New York 10005
Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, New York 11501

Armor Correctional
Health Services
And Dr. C. Marcos

Dale Nicholson McLaren, Esq.
John J. Doody, Esq.
Lewis, Brisbois, Bisgaard & Smith LLP
77 Water Street, 21st Floor
New York, New York 10005

SEYBERT, District Judge:
Plaintiff Marshall Hubsher, proceeding pro se, is an
inmate at the Nassau County Correctional Center.
lawsuit

under

42

U.S.C.

§ 1983

alleging

unconstitutional conditions of confinement.

He filed this
claims

for

Defendants Nassau

County and Sheriff Michael Sposato (collectively, the “County
Defendants”)
Entry 19.)

have

moved

to

dismiss

the

Complaint.

Plaintiff moves to strike their reply papers and

requests leave to file an Amended Complaint.
53.)

(Docket

(Docket Entries 38,

For the following reasons, the County Defendant’s motion to

dismiss is GRANTED IN PART and DENIED IN PART.

The Court DENIES

Plaintiff’s motion to strike but GRANTS Plaintiff’s request for
leave to amend.
BACKGROUND1
In
assaulted

by

the

summer

fellow

of

inmates

2016,
and

including right facial paralysis.
¶ IV.)

Plaintiff

sustained

was

several

frequently
injuries,

(Compl., Docket Entry 1, at 4,

The crux of his Complaint is that the County Defendants

ignored threats of violence and then interfered with his medical
treatment.

(Id. at 6–7, ¶ 4.)

To make matters worse, the County

Defendants also infringed on his ability to participate in Jewish

The Court presents the few facts necessary to resolve these
motions. In doing so, the Court accepts all well-pled facts as
true and draws all reasonable inferences in Plaintiff’s favor.
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006).
1

2

services.

(Id. at 5, ¶ 2.)

allegations
Plaintiff,

state
a

that

For more context, his sprawling

the

County

protective-custody

Defendants:

inmate,

with

(1) housed

the

general

population, (id. at 4, ¶ IV; 5, ¶ 1); (2) prevented kosher meals
and Jewish services, (id. at 5, ¶ 2); (3) issued one handbook, not
two as required by jail policy, (id. at 5–6, ¶ 3); (4) removed
light switches on the medical floor, which hindered his ability to
read

and

to

remove

his

catheter,

(id.

at

6–7,

¶ 4);

(5)

disconnected the intercom between the medical housing area and the
nurse’s office, (id. at 7, ¶ 5); (6) improperly placed him in a
four-man cell, (id. at 7–8, ¶ 6); (7) instituted unjustified
lockdowns that worsened his medical condition, (id. at 8–9, ¶ 7);
and (8) allowed the cell temperature to drop to 55 degrees and
ignored requests for an extra blanket, (id. at 17, ¶ 15).

(Cf.

Cty. Br., Docket Entry 20, at 2 (summarizing the allegations).)
Plaintiff

filed

this

lawsuit

against

Defendants, among others, on October 17, 2016.2

the

County

Soon after, the

Court granted Plaintiff’s motion to proceed in forma pauperis.
(Docket Entry 9.)
violated
Assuming

his

Plaintiff contends that the County Defendants

First,

personal

Eighth,

and

involvement

Fourteenth
or

Amendment

supervisor

rights.

liability,

Plaintiff’s lawsuit includes allegations against other
defendants. Because those defendants are not relevant to this
Memorandum and Order, the Court discusses only those facts that
relate to the County Defendants.
2

3

as

explained below, the Court construes four potential claims against
Sheriff Sposato: (1) conditions-of-confinement claim under the
Eighth Amendment, (Compl. at 8–9, ¶ 7); (2) violation of his rights
to visitation or to make telephone calls under the First Amendment,
(id. at 5, ¶ 2); (3) due process claims of deliberate indifference
to Plaintiff’s safety under the Eighth Amendment, (id. at 17,
¶ 15); and (4) religious liberty claim under the First Amendment,
(id. at 5, ¶ 2).

The Court also construes a nondescript municipal

liability claim against Nassau County.

(Id. at 4, ¶ IV; 5 ¶ 1.)

Three motions are pending before the Court.
Defendants

move

to

dismiss

the

Complaint

(Docket

The County
Entry

19);

Plaintiff moves to strike their reply papers as untimely (Docket
Entry 38); and Plaintiff requests for leave to file an amended
complaint (Docket Entry 53).
DISCUSSION
I.

Plaintiff’s Motion to Strike
To

begin,

Plaintiff

moves

Defendants’ reply papers as untimely.

to

strike

the

County

On January 12, 2017, the

Court ordered the County Defendants to file their reply papers by
March 27, 2017.

(See Jan. 12, 2017 Electronic Order.)

On

February 10, 2017, the County Defendants sought an extension of
time to file their reply, (Docket Entry 18), which was denied by
Electronic Order dated February 24, 2017; their reply was not filed
until June 9, 2017 (Docket Entry 37).
4

The County Defendants offer

no explanation for their untimeliness; instead, they argue that
“there is no statutory mechanism to ‘strike’ part of a motion on
the

grounds

prejudiced.”

of

untimeliness”

and

“Plaintiff

has

not

been

(Cty. Defs.’ July 2017 Ltr., Docket Entry 41, at 1.)

Despite the County Defendants’ lackluster response, “[a] district
court has broad discretion to determine whether to overlook a
party’s failure to comply with local court rules.”

Holtz v.

Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).

Plaintiff

asserts that he was prejudiced because the County Defendants barred
him from the law library after they learned of his lawsuit. (Pl.’s
Aug. 2017 Ltr., Docket Entry 50, at 1.)

If Plaintiff elects to

file an Amended Complaint, as discussed below, he can include
allegations concerning the law library.

Otherwise, since the

parties were “fairly and adequately apprised of the nature and
basis of the application,” the Court will consider the County
Defendants’ reply papers.

See Sentry Ins. A Mut. Co. v. Brand

Mgmt., Inc., No. 10-CV-0347, 11-CV-3966, 2013 WL 5725987, at *2
(E.D.N.Y. Oct. 21, 2013).
II.

The County Defendants’ Motion to Dismiss
Section 1983 prohibits “the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws” by
a person acting under the color of state law.

42 U.S.C. § 1983.

But Section 1983 does not create substantive rights; instead, it
provides a procedure to vindicate rights established elsewhere.
5

Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).

To

state a claim under Section 1983, a plaintiff must “‘allege that
(1) the challenged conduct was attributable at least in part to a
person who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution
of the United States.’”

Rae v. 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)).
Before turning to the various claims, the Court will
address two procedural matters: (1) whether Plaintiff exhausted
his claims under the Prison Litigation Reform Act (“PLRA”) and
(2) whether he filed a notice of claim for any state-law claims.
First,

a

would-be

litigant

must

exhaust

administrative remedies to assert his claims in federal court.
U.S.C. § 1997e(a).

his
42

The PLRA provides that a prisoner may not

assert a claim “with respect to prison conditions . . . until such
administrative remedies as are available are exhausted.” Id. This
requirement applies to “all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.”

Porter

v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992, 152 L. Ed. 2d
12 (2002).

The purpose of this rule is “to reduce the quantity

and improve the quality of prisoner suits,” thereby “afford[ing]
corrections officials time and opportunity to address complaints
6

internally before allowing the initiation of a federal case.”
at 524–25, 122 S. Ct. at 988.

Id.

Because failure to exhaust is an

affirmative defense, “inmates are not required to specially plead
or demonstrate exhaustion in their complaints.”

Jones v. Bock,

549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).

But

courts

the

may

complaint,

dismiss
it

is

a

complaint

clear

administrative remedies.’”

that

when,
a

“‘on

the

face

of

plaintiff

did

not

exhaust

Abreu v. Schriro, No. 14-CV-6418, 2016

WL 3647958, at *8 (S.D.N.Y. July 1, 2016) (quoting Williams v.
Dep’t of Corr., No. 11-CV-1515, 2011 WL 3962596, at *5 (S.D.N.Y.
Sept. 7, 2011)).

Because Plaintiff asserts that he completed the

grievance process, (Compl. at 2, ¶ II.B), the Court need not
resolve the exhaustion issue at this stage, McCoy v. Goord, 255 F.
Supp. 2d 233, 249 (S.D.N.Y. 2003) (“[I]f, as is usually the case,
it is not clear from the face of the complaint whether the
plaintiff exhausted, a Rule 12(b)(6) motion is not the proper
vehicle.”).
Next, a plaintiff must file a notice of claim before
bringing any tort claims against a municipality or one of its
employees.

N.Y. GEN. MUN. LAW § 50-e.

This requirement “appl[ies]

equally to state tort claims brought as pendent claims in a federal
civil rights action,” Warner v. Vill. of Goshen Police Dep’t, 256
F. Supp. 2d 171, 175 (S.D.N.Y. 2003), and the plaintiff bears the
burden “to demonstrate compliance with the [n]otice of [c]laim
7

requirement,”

Horvath

(S.D.N.Y. 2006).
dismissal.”

v.

Daniel,

Failure

to

423
do

F.

so

Supp.

2d

“ordinarily

421,

423

requires

Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 62, 484

N.Y.S.2d 533, 535, 473 N.E.2d 761, 763 (1984).

Here, Plaintiff

has not explicitly pled any state-law claims, and it is unclear
whether he filed a timely notice of claim.

Thus, the Court need

not address whether the public-interest exemption would allow
state-law claims to move forward.

See Mills v. Monroe Cty., 59

N.Y.2d 307, 308, 464 N.Y.S.2d 709, 709, 451 N.E.2d 456, 456 (1983).
A.

Standard of Review
To avoid dismissal, a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974,
167 L. Ed. 2d 929 (2007).

“A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

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

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

Although the plaintiff

need not provide “detailed factual allegations” to support his
claims,

Twombly,

550

U.S.

at

555–56,

127

S.

Ct.

at 1964,

Rule 12(b)(6) demands “more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
Ct. at 1949.

8

Iqbal, 556 U.S. at 678, 129 S.

Pro se submissions, like those from Plaintiff, require
flexible construction, and so the Court must interpret them “‘to
raise the strongest arguments that they suggest.’”

Kirkland v.

Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting Burgos
v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
true

when,

as

violations.”
Cir. 2004).

here,

the

McEachin

v.

Complaint

This is especially

“allege[s]

McGuinnis,

357

F.3d

civil
197,

rights
200

(2d

But this leeway does not excuse Plaintiff “‘from

compl[ying] with relevant rules of procedural and substantive
law.’”

Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting

Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981)).
B.

Claims Against Sheriff Sposato
1.

Official-Capacity Claims

“‘Within the Second Circuit, where a plaintiff names
both the municipal entity and an official in his or her official
capacity, district courts have consistently dismissed the official
capacity claims as redundant.’”

Reid v. Nassau Cty. Sheriff’s

Dep’t, No. 13-CV-1192, 2014 WL 4185195, at *11 (E.D.N.Y. Aug. 20,
2014) (quoting Phillips v. Cty. of Orange, 894 F. Supp. 2d 345,
384 n.35 (S.D.N.Y. 2012)).

That is because “‘an official-capacity

suit is, in all respects other than name, to be treated as a suit
against the entity.’”

Id. (quoting Kentucky v. Graham, 473 U.S.

159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985)) (brackets
omitted).

Thus, Plaintiff’s Section 1983 claim against Sheriff
9

Sposato is DISMISSED WITH PREJUDICE, as it is “duplicative of the
Monell claims against the [municipality].” Canzoneri v. Inc. Vill.
of Rockville Centre, 986 F. Supp. 2d 194, 205 (E.D.N.Y. 2013).
2.

Individual-Capacity Claims

To establish individual liability, a plaintiff must
allege

a

defendant’s

personal

constitutional deprivation.
Cir. 2010).

involvement

in

the

alleged

Farid v. Elle, 593 F.3d 233, 249 (2d

Personal involvement can be shown through direct

participation or through a supervisory official’s “(1) failure to
take corrective action after learning of a subordinate’s unlawful
conduct, (2) creation of a policy or custom fostering the unlawful
conduct, (3) gross negligence in supervising subordinates who
commit unlawful acts, or (4) deliberate indifference to the rights
of others by failing to act on information regarding the unlawful
conduct of subordinates.”

See Hayut v. State Univ. of N.Y., 352

F.3d 733, 753 (2d Cir. 2003).
In

his

opposition

brief,

Plaintiff

contends

that

“Sheriff Sposato’s official policy of cutting costs is the direct
cause of all . . . claims.”

(Pl.’s Br., Docket Entry 24, at 5.)

But the body of the Complaint mentions Sheriff Sposato for only
three

allegations:

(1) the

inadequate

lighting,

(2)

the

unjustified lockdowns, and (3) the 55-degree cell temperature.3

To be sure, Plaintiff’s opposition brief alleges that Sheriff
Sposato refused to spend money on Jewish services, saying “there
3

10

(Compl. at 6–7, ¶ 4; 8–9, ¶ 7; 17, ¶ 15.)
the

first

two

allegations

below

because

The Court will address
Plaintiff

asserts Sheriff Sposato’s personal involvement.4

explicitly

As for the 55-

degree cell temperature, Plaintiff states, flatly and without
more, that “Sheriff Michael Sposato is causing me cruel and unusual
punishment.”

(Compl. at 17, ¶ 15.)

As with most of his points,

Plaintiff complained to unnamed corporals, not Sheriff Sposato,
and fails to provide any facts indicating how he was actually
involved.
to dismiss.

These bare-bones allegations cannot withstand a motion
See Davis v. Cty. of Nassau, 355 F. Supp. 2d 668, 677

(E.D.N.Y. 2005) (“A complaint that essentially regurgitates the
relevant ‘personal involvement’ standard, without offering any
facts indicating that, or how, an individual defendant . . . was
personally

involved

in

a

constitutional

violation,

cannot

withstand dismissal.”).

was no room.” (Pl.’s Br. at 5–6 (internal quotation marks
omitted).) But the Court will not consider the plausibility of
these allegations because a plaintiff cannot amend a complaint
by adding new facts and theories through motion papers. Guo v.
IBM 401(k) Plus Plan, 95 F. Supp. 3d 512, 526 (S.D.N.Y. 2015).
4 Even though Plaintiff filed “a grievance on every malpractice
issue and every misconduct perpetrated,” (Compl. at 2,
¶ II.C.1), he does not allege that Sheriff Sposato received each
one, and even if Sheriff Sposato did, that is not enough to
establish personal involvement. Mateo v. Fischer, 682 F. Supp.
2d 423, 430 (S.D.N.Y. 2010); Ramsey v. Goord, No. 05-CV-0047,
2005 WL 2000144, at *8 (W.D.N.Y. Aug. 13, 2005) (“[T]he fact
that a prison official in the prison ‘chain of command’ affirms
the denial of an inmate’s grievance is not enough to establish
the requisite personal involvement of that official.”)
(citations omitted).
11

As a fallback, Plaintiff alleges that “Sheriff Michael
Sposato is the representative lawmaker for Nassau County Jail,
appointed by Nassau County.”

(Pl.’s Br. at 5.)

It is a general

rule, of course, that a supervisory official who was not personally
involved in the alleged constitutional violation may still be held
liable

if

he

“[1] created

unconstitutional

a

practice[ ]

policy

or

occurred,

continuance of such a policy or custom.”
F.3d 865, 873 (2d Cir. 1995).

custom
or

under

which

[2] allowed

the

Colon v. Coughlin, 58

But the Complaint does not allege

any facts that create an inference that Sheriff Sposato maintained
a policy, for example, of preventing Jewish services or mixing
protective-custody

inmates

with

the

general

population.

See

Pierce v. Chautauqua Cty., No. 06-CV-0644, 2007 WL 2902954, at *4
(W.D.N.Y. Sept. 28, 2007) (dismissing supervisory-liability claim
because “plaintiffs have not alleged factual evidence, outside of
[the

plaintiffs’]

isolated

incident,

which

would

create

inference of a custom or policy created by [the sheriff]”).

an

Thus,

the Court will not consider any claims that fail to allege Sheriff
Sposato’s

personal

continued by him.

involvement

or

any

policies

created

or

Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.

2003) (“Supervisor liability in a § 1983 action depends on a
showing

of

some

personal

responsibility,

and

cannot

rest

on

respondeat superior.” (internal quotation marks, brackets, and
citation omitted)).
12

a.

Conditions of Confinement

Under the Eighth Amendment, Plaintiff contends that
Sheriff Sposato removed light switches on the medical floor, which
affected Plaintiff’s medical treatment.
¶ 7.)

(Compl. at 6, ¶ 4; 8,

For a conditions-of-confinement claim to survive dismissal,

a plaintiff must plausibly allege that: “‘(1) objectively, the
deprivation the inmate suffered was sufficiently serious that he
was denied the minimal civilized measure of life’s necessities,
and

(2)

subjectively,

sufficiently

culpable

the

defendant

state

of

official

mind,

such

indifference to inmate health or safety.’”

acted
as

with

a

deliberate

See Washington v.

Artus, --- F. App’x ----, 2017 WL 3911573, at *1 (2d Cir. 2017)
(quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)).
Assuming, without deciding, that Plaintiff plausibly alleged the
objective element, he has failed to plausibly allege that Sheriff
Sposato was deliberately indifferent to, let alone aware of,
Plaintiff’s medical needs.

(Compl. at 6, ¶ 4; 8, ¶ 7.)

Thus, his

conditions-of-confinement claim is DISMISSED WITHOUT PREJUDICE.
b.
Under

Right of Intimate Association

the

First

Amendment,

Plaintiff

argues

that

a

three-day lockdown prevented him from making any phone calls or
receiving any visitors.

(Compl. at 8, ¶ 7.)

“An inmate’s right

to visitation, communication, mail, packages, and telephone calls
may be restricted if the restrictions employed are reasonably
13

related to penological interests--namely, security.”

Patterson v.

Ponte, 16-CV-3156, 2017 WL 1194489, at *4 (E.D.N.Y. Mar. 30, 2017).
Here, even with a “lenient eye” on his Complaint, Fleming v. United
States, 146 F.3d 88, 90 (2d Cir. 1998), Plaintiff has failed to
plausibly allege that the lockdown was unreasonable, especially
based on a nondescript “disturbance” at a satellite jail located
less than a mile away.

(Compl. at 8–9, ¶ 7.)

Thus, his right-

of-intimate-association claim against Sheriff Sposato is DISMISSED
WITHOUT PREJUDICE.
C.

Claims Against Nassau County
Generously construing his arguments, Plaintiffs contends

that Nassau County violated his constitutional rights by, among
other

reasons,

placing

general population.

him,

a

protective-custody

(Compl. at 4 ¶ 1; 5 ¶ 1.)

inmate,

in

As the Second

Circuit made clear, a municipality like Nassau County cannot be
held liable under Section 1983 on a respondeat superior theory.
See Monell v. Dep’t of Soc. Servcs. of N.Y. City, 436 U.S. 658,
690–91, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978).

For a

Monell claim to survive a motion to dismiss, a plaintiff must
plausibly allege an official policy or custom that caused an
injury.

Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008).

A

plaintiff can establish the existence of a municipal policy or
custom by showing:

14

(1) the existence of a formal policy which is
officially endorsed by the municipality; (2)
actions taken or decisions made by municipal
officials
with
final
decision
making
authority, which caused the alleged violation
of plaintiff's civil rights; (3) a practice so
persistent and widespread that it constitutes
a custom of which constructive knowledge can
be implied on the part of policymaking
officials; or (4) a failure by policy makers
to
properly
train
or
supervise
their
subordinates,
amounting
to
deliberate
indifference to the rights of those who come
in contact with municipal employees.
Calicchio v. Sachem Cent. Sch. Dist., 185 F. Supp. 3d 303, 315–16
(E.D.N.Y. 2016).
“[A]lthough inmates rarely succeed in proving Eighth
Amendment claims predicated on housing violent and non-violent
inmates

together,

such

claims

typically

survive

motions

to

dismiss, at least when the plaintiff alleges that he suffered a
resulting harm (as Plaintiff does here)”.

See Barreto v. Cty. of

Suffolk, 762 F. Supp. 2d 482, 492 (E.D.N.Y. 2010). In other words,
Plaintiff “has alleged enough to get a shot at proving it through
the discovery process.”

Id. at 493.

As a result, the Court DENIES

the County Defendants’ motion on the municipality liability claim.
III.

Plaintiff’s Request for Leave to Amend
Finally, Plaintiff seeks leave to amend his Complaint to

offer a raft of new allegations.

((Pl.’s Br. at 7–10; Pl.’s Mot.

to Amend, Docket Entry 53, at 2–8.)

Pertinently, “[a] party may

amend its pleading once as a matter of course within . . . 21 days

15

after serving it.”

FED. R. CIV. P. 15(a)(1).

Otherwise, the party

requires “the opposing party’s written consent or the court’s
leave.”

FED. R. CIV. P. 15(a)(2).

Having far exceeded the 21-day

window, Plaintiff cannot amend his pleading as a matter of course.
Because the Defendants have neither written for nor against the
amendment, the Court must consider whether filing an amended
complaint is in the interests of justice.

Gaton v. United States,

No. 16-CV-3868, 2017 WL 4082310, at *2 (S.D.N.Y Sept. 13, 2017).
“In

this

Circuit,

pro

se

complaints

should

not

be

dismissed by the district court ‘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.’”

Harnage v.

Torres, 665 F. App’x 82, 84 (2d Cir. 2016) (quoting Shomo v. City
of N.Y., 579 F.3d 176, 183 (2d Cir. 2009)).
allegations

lack

specificity,

the

Here, although some

Complaint

suggests

Plaintiff could possibly state a plausible claim.

that

Thus, Plaintiff

is GRANTED leave to file an amended complaint against Nassau
County,

Sheriff

Sposato

in

his

individual

capacity,

Correctional Health Services, and Dr. C. Marcos.

Armor

If Plaintiff

does not know, and cannot ascertain the identities of other
individuals at this time, he may identify them in the Amended
Complaint as “John Does.”

Plaintiff is cautioned that an Amended

Complaint completely replaces the original Complaint.

16

Thus, all

claims and allegations Plaintiff wishes to pursue must be included
in the Amended Complaint.
CONCLUSION
The County Defendant’s motion to dismiss is GRANTED IN
PART and DENIED IN PART.

(Docket Entry 19.)

Only the municipal

liability claim against Nassau County remains unless Plaintiff
chooses to file an Amended Complaint. The Court DENIES Plaintiff’s
motion to strike the County Defendants’ reply papers, (Docket Entry
38), but GRANTS Plaintiff leave to file an Amended Complaint
consistent with this order, (Docket Entry 53).

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-5842(JS)(ARL).
The

Court

declines

to

issue

a

certificate

of

appealability because the Petitioner has not made a substantial
showing that he was denied a constitutional right. See 28 U.S.C.
§ 2253(c)(2).

The Court also certifies that any appeal of this

Order would not be taken in good faith, and thus his in forma
pauperis status is DENIED for the purposes of any appeal. Coppedge
v. United States, 369 U.S. 438, 444–45, 82 S. Ct. 917, 921, 8 L.
Ed. 2d 21 (1962).

17

The Clerk of the Court is respectfully directed to mail
a copy of this Order to the pro se litigant.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September __28__, 2017
Central Islip, New York

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