Massey v. Suffolk County Riverhead Jail et al

Filing 11

MEMORANDUM & ORDER granting 6 Motion for Leave to Proceed in forma pauperis; denying 8 Motion to Appoint Counsel; denying 10 Motion to Appoint Counsel; For the reasons set forth above, Plaintiff's application to proceed in forma paup eris is GRANTED, (Docket Entry 6), however the Complaint is sua sponte DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Given the dismissal, Plaintiff's applications for the appointment of pro bono counsel to represent him in this case are DENIED as they are now moot, (Docket Entries 8 and 10). 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 an d 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 and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 6/6/2018. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
OBATAIYE MASSEY,
Plaintiff,
MEMORANDUM AND ORDER
18-CV-1469(JS)(SIL)

-againstSUFFOLK COUNTY RIVERHEAD JAIL,
OFFICE OF THE SHERIFF, and
SUFFOLK COUNTY COMMISSARY,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Obataiye Massey, pro se
593749
Suffolk County Correctional Facility
110 Center Drive
Riverhead, NY 11901
For Defendants:

No appearances.

SEYBERT, District Judge:
On March 8, 2018, incarcerated pro se plaintiff Obataiye
Massey (“Plaintiff”) filed a Complaint in this Court pursuant to
42 U.S.C. § 1983 against the Suffolk County Riverhead Jail (the
“Jail”), the Office of the Sheriff (“Sheriff’s Office”), and the
Suffolk

County

“Defendants”).

Commissary

(“Commissary”

and

collectively,

However, Plaintiff did not pay the filing fee nor

did he file an application to proceed in forma pauperis and the
required

Prisoner

Litigation

Authorization

form

(“PLRA”).

Accordingly, by Notice of Deficiency dated March 9, 2018, (see
Docket Entry 4), Plaintiff was instructed to either remit the
filing fee or complete and return the enclosed application to

proceed in forma pauperis and PLRA in order for the case to proceed
(see Docket Entries 6-7).

On March 16, 2018 Plaintiff filed an

application to proceed in forma pauperis together with the PLRA.
On April 2, 2018 and May 21, 2018, Plaintiff filed applications
for the appointment of pro bono counsel to represent him in this
case.

(See Docket Entries 8 and 10.)
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. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is DISMISSED
WITH

PREJUDICE

1915A(b)(i).

pursuant

to

28

U.S.C.

§§ 1915(e)(2)(B)(ii),

Given the dismissal of the Complaint, Plaintiff’s

applications for the appointment of pro bono counsel to represent
him in this case are DENIED as they are now moot.
THE COMPLAINT1

All material allegations in the Complaint 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 Complaint as reproduced here exactly as they
appear in the original. Errors in spelling, punctuation, and
grammar have not been corrected or noted.
1

2

Plaintiff’s sparse Complaint is submitted on the Court’s
Section 1983 Complaint form and seeks to challenge the pricing and
labeling of food items sold at the Commissary.

In its entirety,

the Statement of Claim alleges that:
Suffolk County Jail (Office of the Sheriff) is commiting
crimes I would get incarcerated for. Suffolk County is
Money Gaulging, and cheating the Government (IRS) and
myself and inmates out of Hundreds of thousands,
possible Millions of Dollars a year Due to there
commissary selling individual products clearly stating
on its wrappers Not to Be sold as a individual product.
Myself and other inmates should get these products in
Bulk, But they (products) are taken out of the Box and
sold separately. I am sure with an investigation that
Suffolk County Commissary Revenue is Not Being Reported
correctly to the State for taxes At the End of the year.
This is a criminal offense, and practice that has been
going on for years and years.
I myself have to pay
Extra amount of money sent to me By family and that I’ve
worked hard For for coffee 25¢ Not sold For Retail, Hot
cocoa 30¢ Not sold for retail (individual sale) Little
Debbie cakes 60¢ Not labeled For resale, Breakfast
Essentials 75¢ this unit Not labeled For individual
sale, along with Many others. I have sent proof and a
commissary sheet enclosed so that you can see the limit
of these Not for Sale items on commissary costing me
thousands of Dollars since 2012-2018. (this is a crime
& possible tax evasion).
(Compl. & II.)

In the space on the form complaint that calls for

a description of any injuries suffered and what medical treatment,
if any was required and/or provided, Plaintiff alleges:
Injuries results, Me and my Family Having to go Broke
Buying commissary just to survive. Having to pay for
items Not for Retail sale 10 times the amount of that
item. I have to struggle to Eat and Buy Hygiene products
Due to the money gaulging of Suffolk County.
3

(Compl. & II.A.)

For relief, Plaintiff seeks “[d]ue compensation,

I am seeking Every Dollar Back Due to the High Price of commissary
and Phones, Phones are also Extra Expensive $17.00 for 15 minuets
Securus Phone.

I am also seeking the Bulk of Products I am

Entitled To For Commissary and Relief of custody.
prosecution.”

I also want a

(Compl. ¶ III.)
DISCUSSION

I.

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

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

Plaintiff

is

qualified

to

prepayment of the filing fees.

commence

this

action

without

See 28 U.S.C. § 1915(a)(1).

Therefore, Plaintiff’s requests to proceed in forma pauperis are
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).
4

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.’”
Iqbal, 556 U.S. at 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
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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, the Sheriff’s Office and the
Commissary
Plaintiff’s Section 1983 claims against the Jail, the

Sheriff’s Office and the Commissary are not plausible because none
of these entities have an 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

6

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).
the

Jail,

the

Thus, Plaintiff’s Section 1983 claims against

Sheriff’s

Office,

and

the

Commissary

are

not

plausible and are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§§ 1915(e)(2)(b)(ii); 1915A(b).

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, Suffolk County, and finds that he
has not for the reasons that follow.
B.

Claims As Construed As Against Suffolk County
It

is

well-established

that

a

municipality

such

as

Suffolk 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).

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

7

also Monell, 436 U.S. at 690–91.
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

690–691

decisionmaking

(internal

citation

omitted).
Here, even affording the pro se Complaint a liberal
construction, Plaintiff has not alleged the deprivation of any
constitutional right.

“It is well-established that ‘[i]nmates

have no constitutional right to purchase items from the prison
commissary.’”

Miller v. Cty. of Nassau, 12-CV-4164, 2012 WL

4741592, *7 (E.D.N.Y. Oct. 3, 2012) (quoting Vega v. Rell, No. 09–
CV–0737, 2011 WL 2471295, at *25 (D. Conn. June 21, 2011)) (citing
Mitchell v. City of N.Y., No. 10–CV–4121, 2011 WL 1899718, at *2
(S.D.N.Y. May 13, 2011) (dismissing claims regarding commissary
pricing and selection); Davis v. Shaw, No. 08–CV–0364, 2009 WL
1490609, at *1 (S.D.N.Y. May 20, 2009) (any claims regarding prison
commissary do not rise to level of constitutional violation because
inmates have no constitutional right to use prison commissary).
Accordingly, Plaintiff’s Section 1983 claims, as construed against
Suffolk County, are not plausible and are thus DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b).

8

IV.

Leave to Amend
For the reasons set forth above, Plaintiff’s Complaint-

-even under the very liberal reading we accord pro se pleadings-fails to allege a plausible claim against any Defendant.

Nor does

the Complaint allege a plausible claim when construed as against
the County of Suffolk.
claims

are

substantive,

Because the deficiencies in Plaintiff’s
and

could

not

be

cured

if

given

an

opportunity to amend the Complaint, leave to amend the Complaint
is DENIED.

Given the dismissal of the Complaint, Plaintiff’s

applications for the appointment of pro bono counsel to represent
him in this case are DENIED as they are now moot.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, (Docket Entry 6), however
the Complaint is sua sponte DISMISSED WITH PREJUDICE for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A(b)(1).

Given the dismissal, Plaintiff’s applications for

the appointment of pro bono counsel to represent him in this case
are DENIED as they are now moot, (Docket Entries 8 and 10).
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

9

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 and to
mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
JOANNA SEYBERT, U.S.D.J.
Dated:

June
6 , 2018
Central Islip, New York

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