Hubsher v. Nassau County et al
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
MEMORANDUM & ORDER
NASSAU COUNTY; ARMOR CORRECTIONAL
HEALTH SERVICES; MICHAEL SPOSATO,
Sheriff Sposato as Official of
Nassau County Jail and the
individual; and Dr. C. MARCOS,
Marshall Hubsher, pro se
Mid-State Correctional Facility
PO Box 2500
Marcy, New York 13403
Nassau County and
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
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.
unconstitutional conditions of confinement.
He filed this
County and Sheriff Michael Sposato (collectively, the “County
Plaintiff moves to strike their reply papers and
requests leave to file an Amended Complaint.
(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.
including right facial paralysis.
(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
(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).
(Id. at 5, ¶ 2.)
For more context, his sprawling
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
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).
Cty. Br., Docket Entry 20, at 2 (summarizing the allegations).)
Defendants, among others, on October 17, 2016.2
Soon after, the
Court granted Plaintiff’s motion to proceed in forma pauperis.
(Docket Entry 9.)
Plaintiff contends that the County Defendants
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.
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.
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).
Plaintiff’s Motion to Strike
Defendants’ reply papers as untimely.
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.)
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).
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
(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.”
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).
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).
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.
Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).
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.
administrative remedies to assert his claims in federal court.
U.S.C. § 1997e(a).
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.”
v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992, 152 L. Ed. 2d
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
internally before allowing the initiation of a federal case.”
at 524–25, 122 S. Ct. at 988.
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).
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
Next, a plaintiff must file a notice of claim before
bringing any tort claims against a municipality or one of its
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
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).
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).
Standard of Review
To avoid dismissal, a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.”
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, 1949, 173 L. Ed. 2d 868 (2009).
Although the plaintiff
need not provide “detailed factual allegations” to support his
Rule 12(b)(6) demands “more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
Ct. at 1949.
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.’”
Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting Burgos
v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
This is especially
But this leeway does not excuse Plaintiff “‘from
compl[ying] with relevant rules of procedural and substantive
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981)).
Claims Against Sheriff Sposato
“‘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
Thus, Plaintiff’s Section 1983 claim against Sheriff
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).
To establish individual liability, a plaintiff must
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).
“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
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
(Compl. at 6–7, ¶ 4; 8–9, ¶ 7; 17, ¶ 15.)
The Court will address
asserts Sheriff Sposato’s personal involvement.4
As for the 55-
degree cell temperature, Plaintiff states, flatly and without
more, that “Sheriff Michael Sposato is causing me cruel and unusual
(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
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
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.”)
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
continuance of such a policy or custom.”
F.3d 865, 873 (2d Cir. 1995).
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
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
inference of a custom or policy created by [the sheriff]”).
the Court will not consider any claims that fail to allege Sheriff
continued by him.
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.
2003) (“Supervisor liability in a § 1983 action depends on a
respondeat superior.” (internal quotation marks, brackets, and
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.
(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,
indifference to inmate health or safety.’”
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.)
conditions-of-confinement claim is DISMISSED WITHOUT PREJUDICE.
Right of Intimate Association
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
related to penological interests--namely, security.”
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
Claims Against Nassau County
Generously construing his arguments, Plaintiffs contends
that Nassau County violated his constitutional rights by, among
(Compl. at 4 ¶ 1; 5 ¶ 1.)
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).
Monell claim to survive a motion to dismiss, a plaintiff must
plausibly allege an official policy or custom that caused an
Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008).
plaintiff can 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
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
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
“[A]lthough inmates rarely succeed in proving Eighth
Amendment claims predicated on housing violent and non-violent
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.
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
after serving it.”
FED. R. CIV. P. 15(a)(1).
Otherwise, the party
requires “the opposing party’s written consent or the court’s
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).
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.’”
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)).
Here, although some
Plaintiff could possibly state a plausible claim.
is GRANTED leave to file an amended complaint against Nassau
Correctional Health Services, and Dr. C. Marcos.
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.
claims and allegations Plaintiff wishes to pursue must be included
in the Amended Complaint.
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).
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).
appealability because the Petitioner has not made a substantial
showing that he was denied a constitutional right. See 28 U.S.C.
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).
The Clerk of the Court is respectfully directed to mail
a copy of this Order to the pro se litigant.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
September __28__, 2017
Central Islip, New York
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