Rodriguez v. Nassau County Correction Facility

Filing 7

MEMORANDUM & ORDER granting 4 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 Complaint is sua sponte DISMISSED WITH PREJUDICE as a gainst the Jail and WITHOUT PREJUDICE as against the Sheriff 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 within thirty (30) days from the date of this M&O. 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 11/30/2017. 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
and NASSAU COUNTY SHERIFF,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Jose Rodriguez, pro se
17002714
Nassau County Correctional Facility
100 Carman Avenue
East Meadow, New York 11554
For Defendants:

No appearances.

SEYBERT, District Judge:
On August 28, 2017, incarcerated pro se plaintiff Jose
Rodriguez (“Plaintiff”) filed a Complaint in this Court pursuant to
42 U.S.C. § 1983 (“Section 1983”) against the Nassau County
Correction Facility (“the Jail”) and the Nassau County Sheriff
(“Sheriff” and together, “Defendants”), alleging that he has been
denied daily access to the TTY phone machine while incarcerated at
the Jail.
Plaintiff

(See Compl. ¶¶ IV, V, Docket Entry 1.)
filed

the

Complaint,

Plaintiff

filed

At the time
an

incomplete

application to proceed in forma pauperis and an unsigned Prisoner
Litigation Authorization form (“PLRA”).

Accordingly, by Notice of

Deficiency dated August 29, 2017, Plaintiff was instructed to

complete and return the enclosed application to proceed in forma
pauperis and PLRA within fourteen (14) days in order for his case
to proceed.

On September 14, 2017, Plaintiff filed a complete

application to proceed in forma pauperis and a signed PLRA. Albeit
untimely, the Court accepts Plaintiff’s submissions.
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
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, Plaintiff’s claims

against the Jail are DISMISSED WITH PREJUDICE and as against the
Sheriff are DISMISSED WITHOUT PREJUDICE.
THE COMPLAINT1
Plaintiff’s Complaint is submitted on the Court’s Section
1983 Complaint form and is brief.

The Statement of Claim is a

total of three sentences:
TTY phone I use tty phone machine in law
library only Mon., Wed. nights. I request I
need to use TTY phone during talk to my
family.
Also the reason why staff at the
facility justify not allowing me the use TTY
phone evening because they saying I am an

1

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order. Excerpts from the Complaint as reproduced here exactly as
they appear in the original. Errors in spelling, punctuation,
and grammar have not been corrected or noted.

escape risk which I am not.
(Compl. ¶ IV.)

In the space on the Complaint form that calls for

a description of any claimed injuries, Plaintiff alleges that his
“[f]amily [is] suffering because I can’t speak to them. This is my
only communication.”

(Compl. ¶ IV.A.)

For relief, Plaintiff

“would like to use TTY phone 7 days a week just like the general
population.”

(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.

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.”

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.’”
at

Iqbal, 556 U.S.

678 (quoting Twombly, 550 U.S. at 555).

III.

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, 1501–02, 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
Plaintiff’s claims against the Jail are not plausible

because

it

has

no

independent

legal

identity.

It

is

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

legal

identity.”).

Thus,

Plaintiff’s claims against the Jail are not plausible and are
DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)
(b)(ii); 1915A(b).
B.

Claims Against the Sheriff
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
deprivation.

Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).

The

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.”
676.

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
constitutional deprivation.”

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).
Here, Plaintiff’s sparse Complaint does not include any
factual allegations sufficient to demonstrate personal involvement
by the Sheriff regarding the events alleged in the Complaint.

In

fact, apart from the identification of parties at page three, the

Sheriff is not again mentioned in the body of the Complaint.

(See

generally, Compl.) Thus, it appears that Plaintiff seeks to impose
liability against the Sheriff solely based on the supervisory
position he holds.

Wholly absent, however, are any allegations

sufficient to establish any personal involvement by this Defendant
in the alleged conduct of which Plaintiff complains.

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.
F.3d 431, 435 (2d Cir. 2003).

Richardson v. Goord, 347

Accordingly, Plaintiff’s claims

against the Sheriff are not plausible and are DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b).
C.

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 defect in Plaintiff’s claim

against the Jail is substantive and would not be cured if afforded
an opportunity to amend, leave to amend the Complaint against the
Jail is DENIED.

However, in an abundance of caution, Plaintiff is

GRANTED leave to file an Amended Complaint in order to allege any
valid claims he may have against the Sheriff and/or any proper
Defendant. Any Amended Complaint shall be clearly labeled “Amended

Complaint”, shall bear the same docket number as this Memorandum
and Order (“M&O”), 17-CV-5099(JS)(AKT), and shall be filed within
thirty (30) days from the date of this M&O. Plaintiff is cautioned
that an Amended Complaint completely replaces the original.
Therefore Plaintiff must include any and all claims against any
Defendant(s) he seeks to pursue in the Amended Complaint.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE as against the Jail and WITHOUT
PREJUDICE as against the Sheriff 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 within thirty (30)
days from the date of this M&O.
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 further directed to mail a copy
of this Memorandum and Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: November
30 , 2017
Central Islip, New York