Rodriguez v. Nassau County Correction Facility

Filing 11

MEMORANDUM AND ORDER - For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the April Complaint, Docket No. 18-CV-2453, is sua sponte DISMISSED WITH PREJUDICE as against the Jail for failure t o state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). The April Complaint, Docket No. 18-CV-2453, is CONSOLIDATED with the December 2017 Amended Complaint filed under Docket No. 17-CV-5099 and is DISMISSED WITHOUT PREJUD ICE as against the individual Defendants for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT IN ACCORDANCE WITH THIS ORDER WITHIN THIRTY (30) DAYS FR OM THE DATE AT THE BOTTOM OF THIS PAGE. 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 directed to CLOSE Docket No. 18-CV-2453 and to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 8/28/2018. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JOSE RODRIGUEZ,
Plaintiff,
MEMORANDUM & ORDER
17-CV-5099(JS)(AKT)

-againstNASSAU COUNTY CORRECTION FACILITY,
NASSAU COUNTY SHERIFF, OFFICERS
SAEED, MCLAUGHLIN, JOHNSON, TORCHA,
MURPHY, WHITEFIELD, MCDONNEL,
AROUISTA, HOMLES, PULGRANO, BARBARA,
DAVIS, and CORPORALS AFLEGEL and
FIELDING,
Defendants.
----------------------------------X
JOSE RODRIGUEZ,
Plaintiff,
-against-

18-CV-2453(JS)(AKT)

NASSAU COUNTY CORRECTION,
Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Jose Rodriguez, pro se
18001556
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearance.

SEYBERT, District Judge:
On April 25, 2018, incarcerated pro se plaintiff Jose
Rodriguez

(“Plaintiff”)

filed

another

complaint,

(see

April

Complaint, Docket No. 18-CV-2453, Docket Entry 1), in this Court
pursuant to 42 U.S.C. § 1983 (“Section 1983”) concerning his access

to a “TTY Phone” at the Nassau County Correctional Center (the
“April Complaint”)1 together with an application to proceed in
forma pauperis.2

Plaintiff names “Nassau County Correction” (the

“Jail” or “Defendant”) as the sole Defendant in this case.

(See

Docket No. 18-CV-2453.)
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment

By Memorandum and Order dated November 30, 2017 (the “November
2017 Order”), the Court dismissed Plaintiff’s Complaint
proceeding under Docket Number 17-CV-5099 against the Nassau
County Correctional Facility alleging that he had been denied
daily access to the TTY phone machine. (See Nov. 2017 Order,
Docket Entry 7.) The Court granted Plaintiff leave to file an
Amended Complaint, and, on December 11, 2017, Plaintiff timely
filed a two-page, handwritten document entitled “Amended
Complaint.” (See Rodriguez v. Nassau Cty. Corr. Fac., et al.,
17-CV-5099, Docket Entry 8.) Plaintiff’s submission includes a
caption naming the Nassau County Correction Facility, the Nassau
County Sheriff, and Corrections Officers Saeed, McLaughlin,
Johnson, Torch, Murphy, Whitfield, McDonnel, Arouista, Homles,
Pulgrano, Barbara, Davis, and Corporals Aflegel and Fielding as
Defendants. However, Plaintiff includes no allegations of
conduct or inaction attributable to any of the named Defendants.
And, notwithstanding the dismissal with prejudice of Plaintiff’s
claims against the Nassau Jail in the November 2017 Order,
Plaintiff continues to name the Nassau Jail as a Defendant.
1

Plaintiff filed an unsigned application to proceed in forma
pauperis together with the April Complaint. By Notice of
Deficiency dated April 26, 2018 (the “Notice”), Plaintiff was
instructed to sign and return the enclosed application to
proceed in forma pauperis within fourteen (14) days from the
date of the Notice. On May 3, 2018, Plaintiff timely filed the
signed application. (See Docket No. 18-CV-2453, Docket
Entry 8.)
2
2

of

the

filing

fee.

See

28

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,

the

April

Complaint (see Docket No. 18-CV-2543) is DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
THE APRIL COMPLAINT3
The brief April Complaint is submitted on the Court’s
Section 1983 complaint form.

The Statement of Claim is a total

of four sentences and, in its entirety, alleges:
I have a restriction of me from using the law
library and have lost access to the TTY phone.
I am deemed deaf and need use the TTY phone.
I filed grievance form on 3-25-2018, 4/2/2018,
4-12-2018, and 4-13-2018. I have a list of
the details over these forms are the following
pages.4
(April Compl. & IV.)

In the space on the Complaint form that

calls for a description of any claimed injuries, Plaintiff alleges:
“I have been unable to contact my family and my lawyer.

I haven’t

The following facts are taken from Plaintiff’s April Complaint
(see Docket No. 18-CV-2453) and are presumed to be true for the
purposes of this Order. Excerpts from the April Complaint are
reproduced here exactly as they appear in the original. Errors
in spelling, punctuation, and grammar have not been corrected or
noted.
3

Annexed to the April Complaint are handwritten summaries of the
various grievances Plaintiff allegedly filed on this issue (see
Docket No. 18-CV-2453.)
4

3

been able to aide my case and ensure I can be sent home.”
Compl. & IV.A.)

(April

For relief, Plaintiff “ask[s] that you inform the

Jail of my need to use the TTY phone and release all restrictions
from my life.”

(April Compl. & V.)
DISCUSSION

I.

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.
II.

Consolidation
Under Federal Rule of Civil Procedure 42, “[i]f actions

before the court involve a common question of law or fact, the
court may: (1) join for hearing or trial any or all matters at
issue in the actions; (2) consolidate the actions; or (3) issue
any other orders to avoid unnecessary cost or delay.”
P. 42(a).

FED. R. CIV.

“The trial court has broad discretion to determine

whether consolidation is appropriate.”

Johnson v. Celotex Corp.,

899 F.2d 1281, 1284-85 (2d Cir. 1990).

Consolidation of cases

with

is

common

questions

of

law

or

fact

favored

“to

avoid

unnecessary costs or delay,” Johnson, 899 F.2d at 1284, and to

4

“expedite

trial

and

eliminate

unnecessary

repetition

and

confusion,” Devlin v. Transp. Commc’n Int’l Union, 175 F.3d 121,
130 (internal citations omitted).
“The Second Circuit has long adhered to the first-filed
doctrine
competing

in

deciding

which

litigations.

case

Where

to

dismiss

there

are

where

there

several

are

competing

lawsuits, the first suit should have priority, absent the showing
of balance of convenience or special circumstances giving priority
to the second.”

Kellen Co. v. Calphalon Corp., 54 F. Supp. 2d

218, 221 (S.D.N.Y. 1999) (internal quotation marks, alterations,
and citations omitted); accord Adam v. Jacobs, 950 F.2d 89, 92 (2d
Cir. 1991); First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d
76, 79 (2d Cir. 1989).

The first-filed rule seeks to conserve

judicial resources and avoid duplicative litigation.

See Jacobs,

950 F.2d at 92; First City Nat’l Bank & Trust Co., 878 F.2d at 80;
Kellen, 54 F. Supp. 2d at 221.
Here,

the

Complaints

filed

by

Plaintiff

seek

to

challenge his access to a TTY machine during his incarceration at
the Jail and the facts involved in both Complaints are largely the
same.

Accordingly, in the sound exercise of its discretion, the

Court orders that Plaintiff’s Complaints be CONSOLIDATED pursuant
to Federal Rule of Civil Procedure 42 into the first filed case,

5

17-CV-5099.

The Clerk of Court is DIRECTED to: (1) consolidate

these actions; and (2) mark the April Complaint, assigned docket
number 18-CV-2453, CLOSED.

Any future filings are to be docketed

in only 17-CV-5099.
III.

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.”

6

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 that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
IV.

Rule 8 of the Federal Rules of Civil Procedure
Pursuant to Rule 8(a)(2) of the Federal Rules of Civil

Procedure, a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”

FED.

R. CIV. P. 8(a)(2); Swierkiewicz v. Sorema, N.A., 534 U.S. 506,
512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002).

This short and plain

statement must be “sufficient to give the defendants fair notice
of what the plaintiff’s claim is and the grounds upon which it
rests.”

Jones v. Nat’l Commc’ns and Surveillance Networks, 266

F. App’x 31, 32 (2d Cir. Feb. 21, 2008) (internal citations and
quotation marks omitted) (unpublished opinion).

“The statement

should be plain because the principal function of pleadings under
the Federal Rules is to give the adverse party fair notice of the
claim asserted so as to enable him to answer and prepare for

7

trial.”

Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Under the now well-established Iqbal/Twombly standard,

a complaint satisfies Rule 8 only if it contains enough allegations
of fact to state a claim for relief that is “plausible on its
face.”

Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678.

This

“plausibility standard” is governed by “[t]wo working principles.”
Iqbal, 556 U.S. at 670, 678; accord Harris v. Mills, 572 F.3d 66,
71B72 (2d Cir. 2009).

First, although the Court must accept all

allegations

this

as

true,

“tenet”

is

“inapplicable

to

legal

conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice,” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at
555, 557 (a pleading that offers “labels and conclusion” or “naked
assertion[s]” devoid of “further factual enhancement” does not
satisfy Rule 8).

Second, only complaints that state a “plausible

claim for relief” can survive a motion to dismiss.
U.S. at 679.

Iqbal, 556

Determining whether a complaint does so is “a

context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.”
572 F.3d at 72.

Id.; accord Harris,

“When a complaint does not comply with the

requirement that it be short and plain, the court has the power,
on its own initiative or in response to a motion by the defendant,

8

to strike any portions that are redundant or immaterial . . . or
to dismiss the complaint.”
V.

Salahuddin, 861 F.2d at 42.

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
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, 1501B02, 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. 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)).
A.

Claims Against the Jail
As the Court made clear in the November 2017 Order,

Plaintiff’s Section 1983 claims against the Jail are not plausible
because it has no independent legal identity.
Order at 5-6.)

(See Nov. 2017

It is well-established that “under New York law,
9

departments that are merely administrative arms of a municipality
do

not

have

a

legal

identity

separate

and

apart

from

municipality and, therefore, cannot sue or be sued.”

the

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).

Thus,

Plaintiff’s Section 1983 claims against the Jail are not plausible
and

are

DISMISSED

WITH

PREJUDICE

§§ 1915(e)(2)(b)(ii); 1915A(b).

pursuant

to

28

U.S.C.

Given Plaintiff’s pro se status

and affording his Complaint a liberal construction, the Court has
considered whether Plaintiff has alleged a plausible Section 1983
claim against the municipality, Nassau County, and finds that he
has not for the reasons that follow.
B.

Claims As Construed Against Nassau County
It

is

well-established

that

a

municipality

such

as

Nassau County cannot be held liable under § 1983 on a respondeat
superior theory.

See Monell v. Dep’t of Soc. Servs. of N.Y.C.,

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).

10

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 690B91.
be

sued

for

constitutional

“[L]ocal governments . . . may

deprivations

visited

pursuant

to

governmental ‘custom’ even though such a custom has not received
formal

approval

channels.”

through

Monell,

436

the

body’s

U.S.

at

official

690B691

decisionmaking

(internal

citation

omitted).
To establish the existence of a municipal policy or
custom, the plaintiff must allege: (1) the existence of a formal
policy which is officially endorsed by the municipality, see
Connick, 131 S. Ct. at 1359; (2) actions taken or decisions made
by municipal policymaking officials, i.e., officials with final
decisionmaking authority, which caused the alleged violation of
the plaintiff=s civil rights, see Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 126 (2d Cir. 2004); Jeffes v. Barnes, 208
F.3d 49, 57 (2d Cir. 2000); (3) a practice “so persistent and
widespread as to practically have the force of law,” Connick, 131
S. Ct. at 1359; see also Green v. City of N.Y., 465 F.3d 65, 80

11

(2d

Cir.

2006),

constructive

or

that

acquiescence

“was
of

so

manifest

senior

as

to

policy-making

imply

the

officials,”

Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004)
(internal quotation marks and citations omitted); or (4) that “a
policymaking

official

exhibit[ed]

deliberate

indifference

constitutional deprivations caused by subordinates.”

to

Cash, 654

F.3d at 334 (internal quotation marks and citations omitted); see
also Okin v. Vill. of CornwallBonBHudson Police Dep=t, 577 F.3d
415, 439 (2d Cir. 2009) (A municipal custom may be found when
“‘faced with a pattern of misconduct, [the municipality] does
nothing, compelling the conclusion that [it] has acquiesced in or
tacitly authorized its subordinates’ unlawful actions.’”) (quoting
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (second
alteration in original)).
Here, even affording the pro se April 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 April Complaint,

as construed against Nassau County does not allege a plausible
Section 1983 claim.
C.

Claims Against the Individuals in the Amended Complaint
Here,

as

is

readily

12

apparent,

Plaintiff’s

Amended

Complaint does not comport with the pleading requirements of Rule
8, and fails to state a claim upon which relief may be granted
even when read liberally.

(See Dec. 2017 Am. Compl., Docket No.

17-CV-5099, Docket Entry 8.)

Plaintiff’s sparse submission does

not allege sufficient facts such that the Court may reasonably
construe any plausible claims against any of the named individual
Defendants.

Nor does the December 2017 Amended Complaint seek any

relief as is required by Federal Rule of Civil Procedure 8(a)(3).
Because a party must plead with sufficient factual detail to
“‘nudge[ ] [his or her] claims . . . across the line from
conceivable to plausible’” Iqbal, 556 U.S. at 680 (quoting Twombly,
550 U.S. at 570)), Plaintiff’s claims against the individual
Defendants are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(b)(1).
D.

Leave to Amend
Given

the

Second

Circuit’s

guidance

that

a

pro

se

complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000), the Court has carefully considered whether leave
to amend is warranted here.

Because the defects in Plaintiff’s

claims against the Jail are substantive and would not be cured if
afforded an opportunity to amend, leave to amend the Complaint

13

against the Jail is DENIED.
However,

in

an

abundance

of

caution,

Plaintiff

is

GRANTED leave to file a Second Amended Complaint in order to allege
any valid claims he may have against the municipality, Nassau
County, and/or any proper Defendant.

Any Amended Complaint shall

be clearly labeled “Second Amended Complaint”, shall bear only
docket

number

17-CV-5099(JS)(AKT),

and

shall

be

thirty (30) days from the date of this Order.

filed

within

Plaintiff is

cautioned that a Second Amended Complaint completely replaces all
prior Complaints.

Therefore, Plaintiff must include any and all

claims against any Defendant(s) he seeks to pursue in the Second
Amended

Complaint.

If

Plaintiff

does

not

have

sufficient

information at this time to identify the police officer[s] he seeks
to sue, Plaintiff may continue to name such individual[s] as “John
Doe” but shall include factual allegations of conduct or inaction
attributable to him in support of Plaintiff’s claims.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to

proceed

in

forma

pauperis

is

GRANTED,

however

the

April

Complaint, Docket No. 18-CV-2453, is sua sponte DISMISSED WITH
PREJUDICE as against the Jail for failure to state a claim pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

14

The

April

Complaint,

Docket

No.

18-CV-2453,

is

CONSOLIDATED with the December 2017 Amended Complaint filed under
Docket No. 17-CV-5099 and is DISMISSED WITHOUT PREJUDICE as against
the individual Defendants for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

Plaintiff is GRANTED

LEAVE TO FILE AN AMENDED COMPLAINT IN ACCORDANCE WITH THIS ORDER
WITHIN THIRTY (30) DAYS FROM THE DATE AT THE BOTTOM OF THIS PAGE.
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 CLOSE Docket No.
18-CV-2453 and to mail a copy of this Order to the pro se Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: August
28
, 2018
Central Islip, New York

15