Sowers v. Laroca

Filing 13

MEMORANDUM DECISION AND ORDER. The action is dismissed for failure to state a claim. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B). Because the Court has already given the plaintiff an opportunity to amend the complaint, leave to amend the complain t again would be futile. Cuoco v. Mortisugu, 222 F.3d 99, 112 (2d Cir. 2000). The Clerk of Court is respectfully directed to enter judgment, close this case, send a copy of this Order to the plaintiff, and note the mailing on the docket. 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 an appeal. Ordered by Judge Ann M. Donnelly on 1/6/2025. (DG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
:
JARRED SOWERS,
:
Plaintiff,
: MEMORANDUM DECISION AND
ORDER
:
– against –
24-CV-6540 (AMD) (ST)
:
NASSAU COUNTY CORRECTIONAL
CENTER, C/O ANTHONY LARROCO,
C/O JOHN HOOPER; NASSAU COUNTY
SHERIFF’S DEPARTMENT,

:
:
:

:
Defendants.
--------------------------------------------------------------- X
ANN M. DONNELLY, United States District Judge:
On September 6, 2024, the pro se plaintiff, who is currently incarcerated at the Nassau
County Correctional Center, filed this action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On
October 4, 2024, the plaintiff filed an application to proceed in forma pauperis. (ECF No. 6.)
On October 28, 2024, the Court granted the plaintiff’s application to proceed in forma pauperis
and dismissed the complaint with leave to file an amended complaint within 30 days. (ECF No.
10.) On November 20, 2024, the plaintiff filed an amended complaint. (ECF No. 12.) As
explained below, the plaintiff has not cured the pleading deficiencies of the original complaint.
Accordingly, the complaint is dismissed.
BACKGROUND
In the amended complaint, the plaintiff makes the same factual allegations he made in the
original complaint. He says that in early August 2024 he suffered severe stomach pain after
eating a meal at the Nassau County Correctional Center. (ECF No. 12 at 4.) An x-ray showed

that he swallowed a piece of metal. (Id.) The amended complaint makes three changes. First,
the plaintiff adds new defendants, in addition to Anthony LaRocco (misspelled as Larrocco), to
the caption: the Nassau County Correctional Center, the Nassau County Sherriff’s Department,
and John Hooper. Second, the plaintiff makes a new allegation: that the “Sheriff’s Department
staff failed to properly monitor and maintain a safe and healthy environment, which exposed me
to great bodily harm.” (Id.) Third, the plaintiff clarifies that he seeks $5 million in damages.
(Id. at 5.)
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011).
The pleadings of pro se plaintiffs are held “to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that after Twombly, the court “remain[s] obligated
to construe a pro se complaint liberally”). Nonetheless, the Prison Litigation Reform Act
requires a district court to screen a civil complaint brought by an incarcerated person against a
governmental entity or its agents and to dismiss the complaint, or any portion of the complaint, if
the complaint is “frivolous, malicious, or fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b)(1). Similarly, a district court must dismiss an in forma pauperis
action if the action: (i) “is frivolous or malicious, (ii) fails to state a claim on which relief may be

2

granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” See
id. § 1915(e)(2)(B)(i) –(iii).
DISCUSSION
The Court dismisses the amended complaint for substantially the same reasons that it
dismissed the original complaint — because the amended complaint does not state a claim
pursuant to 42 U.S.C. § 1983. Section 1983 “provides ‘a method for vindicating federal rights
elsewhere conferred,’ including under the Constitution.” Cornejo v. Bell, 592 F.3d 121, 127 (2d
Cir. 2010) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim under
section 1983, “[t]he conduct at issue ‘must have been committed by a person acting under color
of state law’ and ‘must have deprived a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States.’” Id. (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir. 1994)).
The plaintiff’s claim that there was metal in his food sounds in negligence, which does
not form the basis for a constitutional violation under either the Eighth Amendment or the
Fourteenth Amendment. 1 See Taylor v. NYCDOC, 19-CV-4874, 2020 WL 4738270, at *2
(E.D.N.Y. Aug. 12, 2020); Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015) (“[L]iability for
negligently inflicted harm is categorically beneath the threshold of constitutional due process.”
(emphasis in original) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)));
Farmer v. Brennan, 511 U.S. 825, 836 (1994) (holding that a constitutional violation of the
Eighth Amendment based on conditions of confinement “entails something more than mere
negligence”). Courts have held that “the federal Constitution does not afford plaintiff a remedy

1

It is still not clear whether the plaintiff is a pre-trial detainee, entitling him to the protections of the
Fourteenth Amendment, or whether he is serving a post-conviction sentence, entitling him to the
protections of the Eighth Amendment.

3

for the alleged negligence in leaving a piece of metal in the food.” Jones v. Nassau Cnty. Corr.
Facility, No. 86-CR-2710, 1987 WL 20314, at *1 (E.D.N.Y. Nov. 4, 1987); see also Diaz v.
Littlefield, No. 88-CV-3349, 1989 WL 8942, at *1 (S.D.N.Y. Jan. 27, 1989) (“The factual
allegations of the complaint, relating to an incident in which plaintiff found metal in his food,
may or may not state a cause of action for negligence under State law, but do not appear to rise
to the level of a violation of Constitutional right.”); Hall v. San Bernardino Cnty. Sheriff, No. 23CV-325, 2023 WL 2653352, at *2 (C.D. Cal. Mar. 27, 2023). Therefore, the plaintiff’s
allegation that he swallowed a piece of metal does not state a claim upon which relief can be
granted. Moreover, the plaintiff’s allegation that the “Sheriff’s Department staff failed to
properly monitor and maintain a safe and healthy environment” is a legal conclusion
unsupported by any facts. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers
“labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not
do.”).
Even if the plaintiff had alleged conduct establishing a constitutional violation, his claim
would still fail because he has not named any proper defendants. The Nassau County
Correctional Facility and the Nassau County Sheriff’s Department are not suable entities. See
Blanton v. Nassau County Sheriff Dep’t, No. 20-CV-768, 2024 WL 1072207, at *6 (E.D.N.Y.
Mar. 12, 2024.) To the extent the plaintiff intended to name Anthony LaRocco and John Hooper
as individual defendants, he does not allege any facts to show that they were personally involved
in any constitutional violation and therefore does not state a claim against either of them. See
Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (the plaintiff must allege that the defendant was
directly or personally involved in the claimed constitutional deprivation).

4

CONCLUSION
Accordingly, the action is dismissed for failure to state a claim. 28 U.S.C. §§ 1915A(b),
1915(e)(2)(B). Because the Court has already given the plaintiff an opportunity to amend the
complaint, leave to amend the complaint again would be futile. Cuoco v. Mortisugu, 222 F.3d
99, 112 (2d Cir. 2000).
The Clerk of Court is respectfully directed to enter judgment, close this case, send a copy
of this Order to the plaintiff, and note the mailing on the docket. 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 an appeal. Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

Dated: Brooklyn, New York
January 6, 2025

s/Ann M. Donnelly
___________________________________
ANN M. DONNELLY
United States District Judge

5