Grice v. Sperling et al
MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the Second Complaint is sua sponte DISMISSED WITH PREJUDI CE as against the Sheriff's Department and WITHOUT PREJUDICE as against Sheriff Sposato and Nassau County for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Plaintiff's claims against Officer Spe rling shall proceed and the Clerk of the Court shall issue a summons for Officer Sperling and forward the summons together with copies of the Second Complaint and this Order to the USMS for service upon Officer Sperling forthwith. Because the remaini ng claims against Officer Sperling in the Second Complaint are repetitive of the claims alleged in the First Complaint and are against the same Defendant, the Court consolidates them under the first-filed Complaint, 17-CV-0476, and DIRECTS that the c ase assigned docket number 17-CV-1232 be CLOSED. All future filings shall be made only under docket number 17-CV-0476. Additionally, as outlined supra, at 1 n.1, the Clerk of the Court is directed to update Plaintiffs address to Ulster Correctional F acility and mail a copy of this Order to both facilities. As Plaintiff's two cases are now consolidated, Plaintiff is directed to immediately notify the Court of his correct mailing address in 17-CV-0476. 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. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 8/2/2017. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
NASSAU COUNTY CORRECTIONAL
CENTER and OFFICER SPERLING,
OFFICER SPERLING, NASSAU COUNTY
SHERIFF’S DEPARTMENT, COUNTY OF
NASSAU, and MICHEAL [SIC] SPOSATO,
Anthony Grice, pro se1
Ulster Correctional Facility
750 Berme Road
P.O. Box 800
Napanoch, New York 12458
Downstate Correctional Facility
121 Red Schoolhouse Road
P.O. Box F
Fishkill, New York 12524
Liora M. Ben-Sorek, Esq.
The Court received a letter dated February 26, 2017 indicating
that his address had changed; however, this letter was not
docketed on 17-CV-0476 as directed but was docketed only on 17CV-1232. On June 19, 2017, the Court received a letter from
Plaintiff indicating that he is at Downstate Correctional
Facility. The Clerk of the Court is directed to mail a copy of
this Order to both addresses and the Plaintiff is directed to
immediately notify the Court of his correct mailing address.
Nassau County Attorney’s Office
One West Street
Mineola, New York 11501
Nassau County Sheriff’s
Department, County of
Nassau, and Michael J.
SEYBERT, District Judge:
pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the Nassau
assaulted on January 4, 2017 while incarcerated at the Jail.
the “First Complaint”, Grice v. Nassau Cty. Corr. Ctr., No. 17-CV0476.)
By Memorandum and Order dated February 6, 2017, the Court
granted Plaintiff’s application to proceed in forma pauperis,
dismissed Plaintiff’s claims as against the Jail, and ordered
service of the summons and complaint upon Officer Sperling.
Mem. & Order, Docket Entry 6.) On March 29, 2017, Officer Sperling
filed an Answer to the Complaint, (Ans., Docket Entry 10) and, on
March 30, 2017, Magistrate Judge Arlene R. Lindsay entered a
discovery scheduling order (Scheduling Order, Docket Entry 11).
However, the Scheduling Order that was mailed to Plaintiff was
returned and marked “Return to Sender”, “Unable to Forward”, and
(See Docket Entry 15.)
On February 23, 2017, Plaintiff filed another Complaint
against Officer Sperling and has included as additional Defendants:
(2) the County of Nassau (“Nassau County”); and (3)
Michael J. Sposato (“Sheriff Sposato”) (“the Second Complaint”).
The Second Complaint (assigned Docket Number 17-CV-1232) seeks to
challenge the same January 4, 2017 incident described in the First
application to proceed in forma pauperis filed together with the
Second Complaint, the Court finds that Plaintiff is qualified to
commence this action without prepayment of the filing fee.
U.S.C. §§ 1914(a); 1915(a)(1).
Therefore, Plaintiff’s request to
proceed in forma pauperis is GRANTED.
However, for the reasons
that follow, Plaintiff’s claims against the Sheriff’s Department
are DISMISSED WITH PREJUDICE and against Nassau County and Sheriff
Sposato are DISMISSED WITHOUT PREJUDICE.
Because the remaining
repetitive of the claims alleged in the First Complaint and are
against the same Defendant, the Court consolidates them under the
assigned docket number 17-CV-1232 be CLOSED.
All future filings
shall be made only under docket number 17-CV-0476.
the Court ORDERS service of the Summons and Second Complaint upon
Officer Sperling by the United States Marshal Service (“USMS”).
THE SECOND COMPLAINT2
Plaintiff’s Second Complaint is submitted on the Court’s
Section 1983 Complaint and is brief.
The Statement of Claim is a
January 4, 2017 I was leaving medical when a
known gang member enter an argument and fight
with me, upon a tussel insued I was grabbed by
Officer Sperling by my shirt and neck and
thrown to the floor with my head hitting the
wall and busting open leaving a 3 inch gash
needing 8 staples to close.
(Compl. ¶ IV.)
Plaintiff alleges: “My head, neck, back, and
shoulder in which required 8 staples to close the wound I have
headaches and my neck, back, and shoulder are in constant pain.”
(Compl. ¶ IV.A.)
For relief, Plaintiff seeks “monetary, procedure
changes, repremand, therapy and medical treatment.” (Compl. ¶ V.)
In Forma Pauperis Application
Upon review of Plaintiff’s declarations in support of his
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.
See 28 U.S.C. § 1915(a)(1). Therefore,
Plaintiff’s request to proceed in forma pauperis is GRANTED.
Application of 28 U.S.C. § 1915
The following facts are taken from Plaintiff’s Second Complaint
and are presumed to be true for the purposes of this Memorandum
and Order. Excerpts from the Second Complaint as reproduced here
exactly as they appear in the original. Errors in spelling,
punctuation, and grammar have not been corrected or noted.
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, 566 U.S. 356, 361, 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)).
Claims Against Sheriff Sposato
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.
Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010).
include any factual allegations sufficient to demonstrate personal
involvement by Sheriff Sposato regarding the events alleged in the
Complaint. In fact, apart from the caption, Sheriff Sposato is not
generally, Second Compl.) Thus, it appears that Plaintiff seeks to
impose liability against Sheriff Sposato solely based on the
supervisory position he holds.
Wholly absent, however, are any
allegations sufficient to establish any personal involvement by
A supervisor cannot be held liable for damage under
Section 1983 solely by virtue of being a supervisor because there
is no respondeat superior liability under Section 1983. Richardson
Plaintiff’s claims against Sheriff Sposato are not plausible and
Claims Against the Sheriff’s Department
Plaintiff’s claims against the Sheriff’s Department are
not plausible because it has no independent legal identity.
well-established that “under New York law, departments that are
merely administrative arms of a municipality do not have a legal
identity separate and apart from the municipality and, therefore,
cannot sue or be sued.”
Davis v. 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 at 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); Trahan v. Suffolk Cty.
Corr. Fac., 12–CV–4353, 2012 WL 5904730, *3 (E.D.N.Y. Nov. 26,
2012) (dismissing claims against the Suffolk County Jail because it
“is an administrative arm of Suffolk County, without an independent
Thus, Plaintiff’s claims against the Sheriff’s
Department are not plausible and 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. Servs. of N.Y. City, 436 U.S.
658, 690–91, 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.
“[L]ocal 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.”
U.S. at 690–91.
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 Second 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, Plaintiff’s Second Complaint
does not allege a plausible Section 1983 claim against Nassau
County and is thus DISMISSED WITHOUT PREJUDICE as against Nassau
County pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A(b).
For the reasons set forth above, Plaintiff’s application
to proceed in
is GRANTED, however the Second
Complaint is sua sponte DISMISSED WITH PREJUDICE as against the
Sheriff’s Department and WITHOUT PREJUDICE as against Sheriff
Sposato and Nassau County for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
against Officer Sperling shall proceed and the Clerk of the Court
shall issue a summons for Officer Sperling and forward the summons
together with copies of the Second Complaint and this Order to the
USMS for service upon Officer Sperling forthwith.
Because the remaining claims against Officer Sperling in
the Second Complaint are repetitive of the claims alleged in the
First Complaint and are against the same Defendant, the Court
consolidates them under the first-filed Complaint, 17-CV-0476, and
DIRECTS that the case assigned docket number 17-CV-1232 be CLOSED.
All future filings shall be made only under docket number 17-CV0476.
Additionally, as outlined supra, at 1 n.1, the Clerk of the
Correctional Facility and mail a copy of this Order to both
Plaintiff is directed to immediately notify the Court of his
correct mailing address in 17-CV-0476.
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 further directed to mail a copy
of this Memorandum and Order to the pro se Plaintiff.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
2 , 2017
Central Islip, New York
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