Sanchez v. Nassau County et al

Filing 79

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED that Armor's motion to dismiss is granted in its entirety, without prejudice. IT IS FURTHER ORDERED that plaintiffs motions for summary judgment are denied in their entirety, witho ut prejudice and with leave to re-file at the conclusion of discovery. IT IS FURTHER ORDERED that plaintiff shall have thirty (30) days from the date of this Order to file an amended complaint to attempt to address the pleading defects regarding a cl aim against Armor identified in the R&R and this Order. In any amended complaint, plaintiff should also re-assert his allegations regarding the County defendants. Failure to do so will lead to dismissal of the claim against Armor with prejudice. IT IS FURTHER ORDERED that defendants serve a copy of this Order on plaintiff. Ordered by Judge Joseph F. Bianco on 3/18/2019. (Bollbach, Jean)

FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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PIERRE SANCHEZ,

IN CLERK'S OFFICE
U.S. DISTRiCT COUR r E.D.N.Y.

LONG ISLAND OFFICE

Plaintiff,
ORDER
17-CV-7335 (JFB)(AKT)

-againstNASSAU COUNTY, et al.,
Defendants.

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JOSEPH F. BIANCO, District Judge:

On May 30, 2018, the Court designated the Amended Complaint, filed on May 14, 2018
by prose plaintiff Pierre Sanchez {"plaintiff') (ECF No. 19), as the operative pleading in this case
(ECF No. 22). 1 The Amended Complaint includes allegations against Nassau County, the Nassau
County Sheriffs Department, Sheriff Michael Sposato, Armor Correctional Health Services of
New York, Inc ("Armor")2, and five unnamed Nassau County correction officers, relating to an
incident in the recreation yard at the Nassau County Correctional Center. (See generally Am.
Compl.) On June 4, 2018, plaintiff filed a "Notice of Filing Additional Supplement to the
Amended Complaint," which included other arguments and factual allegations relating to the time
period preceding and following the incident alleged in the Amended Complaint. (ECF No. 24.)
Plaintiff filed his first motion for summary judgment on June 28, 2018. (ECF No. 27.) On July
24, 2018, Nassau County, the Nassau County Sheriffs Department, and Sheriff Michael Sposato
("County defendants") filed an answer to the amended complaint. (ECF No. 37.) On August

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The Court notes that the initial Complaint in this case was filed on December 18, 2017 (ECF No. 1), and multiple
other filings were made prior to the Court's Order designating the May 14, 2018 Amended Complaint as the
operative pleading. The Court has carefully reviewed, and now adopts, the entirety of the procedural history
outlined in Magistrate Judge Tomlinson's Report and Recommendation ("R&R") (ECF No. 74). For the purposes
of the instant Order, only the filings directly relevant to the adoption of the analysis and conclusions in the R&R are
listed.
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Armor was incorrectly sued in this action as Armor Medical Group.

16, 2018, Armor filed its motion to dismiss. (ECF No. 4 7.) On August 29, 2018, plaintiff filed
two separate opposition documents in response to Armor's motion to dismiss, as well as a second
motion for summary judgment.

(ECF Nos. 50-52.) Armor filed its reply memorandum in

further support of the motion to dismiss on October 1, 2018. (ECF No. 55.)
By Order dated October 5, 2018, the Court referred Armor's motion to dismiss and
plaintiffs summary judgment motions to Magistrate Judge Tomlinson for a report and
recommendation. (ECF No. 56.) On October 15, 2018, plaintiff filed a letter raising additional
allegations against Armor, including that Armor employees were smuggling razors into Nassau
County Correctional Center, as well as making additional arguments in opposition to Armor's
motion to dismiss. (ECF No. 57.) On October 18, 2018, plaintiff filed another letter, which
included additional arguments in support of his motions for summary judgment, and in which he
requested that the Court view video footage of the incident complained of in the Amended
Complaint. (ECF No. 58.)
On February 28, 2019, Magistrate Judge Tomlinson issued an R&R. (ECF No. 74.) The
R&R recommended that the Court grant Armor's motion to dismiss as to any Section 1983 claim
and any negligent hiring or retention claim against Armor, without a recommendation as to
whether the dismissal should be with prejudice.

(Id. at 24.)

Additionally, the R&R

recommended that the Court deny plaintiffs motions for summary judgment without prejudice,
with leave to re-file after the close of discovery. (Id at 9.) On March 13, 2019, plaintiff filed a
"response/objection" to the portion of the R&R relating to the dismissal of his summary judgment
motions, contending that defendants did not oppose those motions. (ECF No. 77.) The Court
has fully considered the parties' submissions. For the reasons set forth below, the Court adopts
the well-reasoned and thorough R&R in its entirety, and in its discretion, grants plaintiff leave to

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file an amended complaint.
Standard of Review

A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.

See Deluca v. Lord, 858 F. Supp. 1330, 1345

(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372,374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI
Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997).

When "a party submits a timely

objection to a report and recommendation, the district judge will review the parts of the report and
recommendation to which the party objected under a de novo standard of review." Jeffries v.
Verizon, 10-CV-2686 (JFB)(AKT), 2012 WL 4344188, at *l (E.D.N.Y. Sept. 21, 2012); see also

28 U.S.C. § 636(b)(l)(C) ("A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.").
Plaintiffs Objections

Plaintiff objected to the R&R on the following grounds: (I) the R&R did not consider that
Nassau County did not dispute anything in plaintiffs summary judgment motions and (2) the R&R
did not consider that "defendants were required to move pursuant to [Rule 56(e)] as well as 56.1
of the [Federal Rules of Civil Procedure]." (Pl. Obj., at 1-2).
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Analysis
Having conducted a review of the full record and the applicable law, and having conducted
a de novo review of the entire R&R, the Court adopts the analysis and recommendations contained
in the R&R in their entirety. Additionally, the Court concludes in its discretion that, given
plaintiff's pro se status, he should be permitted to file an amended complaint as against Armor to
include allegations relating to the alleged smuggling of razor blades, especially because plaintiff
has not previously had the benefit of the Court's decision, in terms of the proper pleading standards
with respect to those allegations.
In particular, the Court finds that the R&R correctly concluded that plaintiffs motions for·
summary judgment were premature, and should be denied without prejudice to re-filing a summary
judgment motion at the close of discovery. The R&R correctly notes, citing to the Supreme Court
decision in Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986), as well as Second Circuit authority,
that "it is a general principle of federal civil procedure that summary judgment is appropriate only
after each party has had an opportunity to engage in discovery and to develop the factual record."
(R&R, at 8.)
Plaintiff objects to the R&R on the grounds that defendants did not oppose plaintiffs
motions for summary judgment and did not "move pursuant to [Rule 56(e)]." (Pl. Obj., at 2).
The Court concludes, however, that defendants' failure to oppose the summary judgment motions
and/or address any of plaintiff's assertions of fact, does not affect the outcome of plaintiffs
motions at this time. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,242 (2d
Cir. 2004) ("Even when a motion for summary judgment is unopposed, the district court is not
relieved of its duty to decide whether the movant is entitled to judgment as a matter of law."). It

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is clear that defendants did not respond to his summary judgment motions because they are
obviously premature, and not because defendants do not oppose them on the merits.
Here, plaintiff asks the Court, in the absence of any discovery, to grant summary judgment
in his favor. However, "pre-discovery summary judgment is the exception rather than the rule
and will be granted 'only in the clearest of cases."' Wells Fargo Bank Nw., N.A. v. Taca Int'/

Airlines, S.A., 247 F. Supp. 2d 352, 359-60 (S.D.N.Y. 2002) (quoting Kleinman v. Vincent, 1991
WL 2804 *1 (S.D.N. Y. Jan. 8, 1991 )). The Court concludes that this is clearly not a case where
a pre-discovery summary judgment motion is warranted. In particular, the Court notes, as did the
R&R, that no discovery has been conducted, discovery is currently stayed, and that "[p]laintiffs
own filings make clear that he seeks both discovery, and a trial on the merits of his claims for
which he anticipates retaining the services of counsel." (R&R, at 9) (citations to the record
orriitted). In addition, Armor's motion to dismiss makes clear that there are factual issues that
they dispute which are the proper subject of discovery (if plaintiff asserts a plausible claim).
Furthermore, the County Defendants' Narrative Statement (ECF No. 62) demonstrates that there
are numerous factual issues that need to be developed before the parties would be in a position to
make, or defend against, summary judgment motions. As a result, the Court agrees with the R&R,
and denies plaintiffs motions for summary judgment without prejudice, and with leave to re-file
after the conclusion of discovery.
With respect to Armor's motion to dismiss, after de novo review, the Court agrees with the
R&R that plaintiffs conclusory allegations regarding smuggling of razor blades into the jail

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(including an online news article unrelated to that particular issue) are insufficient, even liberally
construing his prose pleadings, to state a plausible claim against Armor under Section 1983. 3
The Court has also considered whether plaintiff should be granted leave to re-plead his
claim against Armor. Although plaintiff did not request leave to re-plead, the Court believes
plaintiff, who is proceeding pro se, should be afforded leave to amend his complaint. Pursuant to
Rule 15(a) of the Federal Rules of Civil Procedure, the "court should freely give leave [to amend]
when justice so requires." Fed. R. Civ. P. lS(a). The Second Circuit has made clear that, under
this liberal standard, that where plaintiff proceeds pro se, "the court should not dismiss 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." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal
citations and quotation marks omitted); accord Grullon v. City ofNew Haven, 720 F.3d 133, 139
(2d Cir. 2013). The Second Circuit has further emphasized the importance of following this
procedure in prose civil rights cases. See, e.g., Thompson v. Carter, 284 F.3d 411, 419 (2d Cir.
2002) ("The liberal pleading standards applicable to pro se civil rights complaints in this circuit
require[] that the district court give [plaintiff] an opportunity to flesh out his somewhat skeletal
complaints before dismissing them."). Although Magistrate Judge Tomlinson correctly noted that
plaintiff has made numerous submissions to the Court and has already amended his complaint, the
allegations regarding Armor employees smuggling razor blades into the Nassau County
Correctional Facility are new. Given plaintiffs prose status, the Court concludes that he should

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Although Armor did not file any objections, the Court has also reviewed the R&R as it relates to Armor's other
arguments for dismissal and agrees with the analysis in the R&R in its entirety, including its rejection (at the motion
to dismiss stage) of Armor's arguments regarding exhaustion of administrative remedies, the lack of personal
involvement, and Armor's assertion that it was not the medical provider at the jail at the time of the alleged attack on
plaintiff.

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be permitted to file an amended complaint as against Armor to include allegations relating to the
smuggling of razor blades, especially because plaintiff has not previously had the benefit of the
Court's decision in terms of the proper pleading standards with respect to those allegations.
Accordingly,
IT IS HEREBY ORDERED that Armor's motion to dismiss is granted in its entirety,
without prejudice.
IT IS FURTHER ORDERED that plaintiffs motions for summary judgment are denied in
their entirety, without prejudice and with leave to re-file at the conclusion of discovery.
IT IS FURTHER ORDERED that plaintiff shall have thirty (30) days from the date of this
Order to file an amended complaint to attempt to address the pleading defects regarding a claim
against Armor identified in the R&R and this Order. In any amended complaint, plaintiff should
also re-assert his allegations regarding the County defendants. Failure to do so will lead to
dismissal of the claim against Armor with prejudice.
IT IS FURTHER ORDERED that defendants serve a copy of this Order on plaintiff.
SO ORDERED.

SI JOSEPH F. BIANCO
uoseph . '. H1anco
l
United States District Judge

J!,

Dated: March
2019
Central Islip, New York

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