Washington v. Spasoto et al

Filing 9

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's applications to proceed in forma pauperis are GRANTED. The Complaints are CONSOLIDATED into the first-filed action, 17 -CV- 7575(JS)(SIL), and the Clerk of Court is DIRECTED to: (1) consolidate these actions; and (2) mark the Complaint assigned docket number 18-CV-0191 CLOSED. The Complaints are sua sponte DISMISSED WITHOUT PREJUDICE for failure to state a claim purs uant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Plaintiff is GRANTED leave to file an Amended Complaint in order to allege any valid claims he may have against Defendants. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) tha t 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 7/3/2018. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JEROME WASHINGTON,
Plaintiff,
MEMORANDUM AND ORDER
17-CV-7575(JS)(SIL)

-againstMICHAEL SPOSATO, LT. KRUGER,
Defendants.
----------------------------------X
JEROME WASHINGTON,
Plaintiff,
-against-

18-CV-0191(JS)(SIL)

MICHAEL SPOSATO, LT. KRUGER,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Jerome Washington, pro se
18A0985
Downstate Correctional Facility
121 Red Schoolhouse Road
PO Box F
Fishkill, New York 12524
For Defendants:

No appearances.

SEYBERT, District Judge:
On December 29, 2017, incarcerated pro se plaintiff
Jerome Washington (“Plaintiff”) filed a Complaint in this Court
pursuant to 42 U.S.C. § 1983 against Michael Sposato (“Sposato”)
and Lt. Kruger (“Kruger” and together, “Defendants”), together
with an application to proceed in forma pauperis.
Docket Entries 1-2.)

(See 17-CV-7575

On January 10, 2018, Plaintiff filed another

Complaint

against

Defendants

proceed in forma pauperis.
Upon

review

of

together

with

an

application

to

(See 18-CV-0191 Docket Entries 1-2.)
the

declarations

in

support

of

the

applications to proceed in forma pauperis, the Court finds that
Plaintiff

is

qualified

to

commence

prepayment of the filing fees.

these

actions

without

See 28 U.S.C. § 1915(a)(1).

Therefore, Plaintiff’s requests to proceed in forma pauperis are
GRANTED.

Plaintiff’s Complaints are CONSOLIDATED into the first-

filed Complaint, 17-CV-7575, and the Complaint assigned docket
number 18-CV-0191 shall be CLOSED.
shall be made in docket 18-CV-0191.
follow,

Plaintiff’s

claims

are

No further docket entries
However, for the reasons that

DISMISSED

WITHOUT

PREJUDICE

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(i).
THE COMPLAINTS1
Plaintiff’s Complaints are submitted on the Court’s
Section 1983 Complaint form and are brief.

The Complaints are

virtually identical and, in their entirety, the Statements of Claim

All material allegations in the Complaints are presumed to be
true for the purpose of this Memorandum and Order. Rogers v.
City of Troy, N.Y., 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing
a pro se complaint for sua sponte dismissal, a court is required
to accept the material allegations in the complaint as true).
Excerpts from the Complaints are reproduced here exactly as they
appear in the originals. Errors in spelling, punctuation, and
grammar have not been corrected or noted.
1

2

allege that, while at the Nassau County Correctional Center, during
the period September 8th and December 5th of an unspecified year:
Andrew Cuomo said we allowed four hours out of
our cells but we are not getting that. And
it was happen on solitary confinement and I
sent a copy out of the paper and grievance was
accepted.
(17-CV-7575 Compl. & II.)2

In the space on the form complaints

that calls for a description of any injuries suffered and what
medical treatment, if any was required and/or provided, Plaintiff
alleges, “No”.

(Compls. & II.A.)

For relief, Plaintiff seeks an

award of “a million dollars or whatever the judge or jury award
me” in each Complaint.

(Compls. & III.)
DISCUSSION

I.

In Forma Pauperis Applications
Upon review of Plaintiff’s declarations in support of

his applications to proceed in forma pauperis, the Court finds
that Plaintiff is qualified to commence these actions without
prepayment of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore, Plaintiff’s requests to proceed in forma pauperis are
GRANTED.

The Complaints are identical except that Plaintiff alleges that
“he sent the Sheriff a copy of the paper” in the Complaint
assigned docket number 18-CV-0191. (See 18-CV-0191 ¶ II
(emphasis added).)
2

3

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
“expedite

trial

and

eliminate

unnecessary

repetition

and

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

in

deciding

litigations.

which

case

Where

to

dismiss

there

are

where
several

there

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

4

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 are against the
same Defendants and are largely identical.

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, 17-CV-7575.

The Clerk of

Court is DIRECTED to: (1) consolidate these actions; and (2) mark
the Complaint assigned docket number 18-CV-0191 CLOSED.

Any

future filings are to be docketed in only 17-CV-7575.
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

5

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.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
IV.

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 . . . .
6

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)).
In addition, 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.
Cir. 2010).

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

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.”

556 U.S. at 676, 129 S. Ct. at 1948.

Thus, a

“plaintiff asserting a Section 1983 claim against a supervisory
official in his individual capacity” must sufficiently plead that
the

“supervisor

was

personally

constitutional deprivation.”

involved

in

the

alleged

Rivera v. Fischer, 655 F. Supp. 2d
7

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 brief Complaints do not include any
factual allegations sufficient to demonstrate personal involvement
by either Defendant regarding the events alleged.

In fact, apart

from the captions, Lt. Kruger is not again mentioned in the body
of either Complaint and Sheriff Sposato is referenced only in the
Complaint

assigned

docket

number

18-CV-0191

Plaintiff sent “a copy of the paper” to him.
Compls., and Compl. in 18-CV-0191 at ¶ II.)

and

only

that

(See generally,

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

Defendants

Plaintiff complains.

in

the

unlawful

conduct

of

which

A supervisor cannot be liable for damage

under Section 1983 solely by virtue of being a supervisor because
there is no respondeat superior liability under Section 1983.
Richardson
Accordingly,

v.

Goord,

347

Plaintiff’s

F.3d

claims

431,
are

435
not

(2d

Cir.

plausible

2003).
and

are

DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)

8

(b)(ii); 1915A(b).
V.

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.

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 Defendants.

Any Amended

Complaint shall be clearly labeled “Amended Complaint”, shall bear
the same docket number as this Memorandum and Order (“M&O”), 17CV-7575(JS)(SIL), 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

applications to proceed in forma pauperis are GRANTED.

The

Complaints are CONSOLIDATED into the first-filed action, 17-CV7575(JS)(SIL),

and

the

Clerk

of

Court

is

DIRECTED

to:

(1)

consolidate these actions; and (2) mark the Complaint assigned

9

docket number 18-CV-0191 CLOSED.

Any future filings are to be

docketed in only 17-CV-7575.
The

Complaints

are

sua

sponte

DISMISSED

WITHOUT

PREJUDICE 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 order to allege any valid claims he
may have against Defendants.

Any Amended Complaint shall be

clearly labeled “Amended Complaint”, shall bear the same docket
number as this Memorandum and Order (“M&O”), 17-CV-7575(JS)(SIL),
and shall be filed 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.

Dated: July
3 , 2018
Central Islip, New York

/s/ JOANNA SEYBERT______
JOANNA SEYBERT, U.S.D.J.
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