Gayot v. Perez et al

Filing 50

ORDER OF DISMISSAL WITH LEAVE TO REPLEAD: The complaint is dismissed without prejudice for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). If Plaintiff chooses to amend his complaint, he must su bmit the amended complaint to this Court's Pro Se Intake Unit within 30 days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 16-CV-8871 (KMK). An Amended Complaint form is attached to this order. If Plaintiff fails to submit an amended complaint within the time allowed and does not show good cause to excuse such failure, the Court will enter a civil judgment consistent with this order and direct the Clerk of Court to terminate this matter. Although the Clerk of Court issued summonses in this case, no answers are required until further notice by the Court. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Kenneth M. Karas on 1/3/2023) (vfr)

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDREW GAYOT,
Plaintiff,

16-CV-8871 (KMK)

-against-

ORDER OF DISMISSAL
WITH LEAVE TO REPLEAD

DUTCHESS COUNTY,
Defendant.
KENNETH M. KARAS, United States District Judge:

Andrew Gayot (“Plaintiff”) brings this pro se action, for which the filing fees have been
paid, alleging that Duchess County (“Defendant” or the “County”) violated his federally
protected rights. For the reasons set forth below, the Court dismisses the complaint with leave to
replead.
I. Standard of Review
The Court has the authority to dismiss a complaint, even when a plaintiff has paid the
filing fee, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants
Corp., 221 F.3d 362, 363–64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16–17
(2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss
frivolous appeal)), or that the Court lacks subject matter jurisdiction, Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 583 (1999). The Court also may dismiss an action for failure to state a
claim, “so long as the plaintiff is given notice and an opportunity to be heard.” Wachtler v.
County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (citation and internal quotation marks
omitted). The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 2 of 13

suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotation marks and citations omitted) (emphasis in original).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and
plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief
if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts
all well-pleaded factual allegations as true and draws all reasonable inferences in the pleader’s
favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). However, the Court need
not accept “[t]hreadbare recitals of the elements of a cause of action,” which are essentially legal
conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions
from well-pleaded factual allegations, the court must determine whether those facts make it
plausible—not merely possible—that the pleader is entitled to relief. Id.
II. Background
Plaintiff filed this Action on November 15, 2016 against three individual defendants, (see
Compl. (Dkt. No. 2)), and filed an Amended Complaint on March 30, 2017, (see. Am. Compl.
(Dkt. No. 8). On November 21, 2018, the Court dismissed Plaintiff’s claims without prejudice
for failure to exhaust. (See Op. & Order 16 (Dkt. No. 37).) On January 8, 2021, Plaintiff
informed the Court that his claim was properly exhausted and requested that he be allowed to file
a new Complaint that replaced the individual defendants with “Dutchess County [sic].” (See
Letter from Andrew Gayot to Court (December 28, 2020) (Dkt. No. 39); Letter from Andrew
Gayot to Court (December 28, 2020) (Dkt. No. 40).) On February 3, 2021, the Court granted
Plaintiff’s request and set a deadline of March 5, 2021. (See Dkt. No. 41.) On June 14, 2022,
the Court issued an Order to Show Cause why this case should not be dismissed for failure to

2

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 3 of 13

prosecute. (See Order to Show Cause (Dkt. No. 43).) On July 11, 2022, Plaintiff filed his
Second Amended Complaint (“SAC”). (See Second Am. Compl. (“SAC”) (Dkt. No. 46).)
The following facts are taken from Plaintiff’s SAC. Plaintiff alleges that several officers
at Downstate Correctional facility violated his rights from August to December 2016. (SAC 4.)
Specifically, Plaintiff alleges that a Sergeant Candidus “questioned Plaintiff’s relationship with
his attorney in violation of Plaintiff’s right to attorney-client privilege.” (Id.) Plaintiff also
claims that he has repeatedly experienced interference with his mail. (Id. at 5.) Plaintiff asserts
that the interference with his mail resulted in denial of his access to the courts because he was
unable to properly answer legal notices in a pending mortgage foreclosure action. (Id. at 4.)
Finally, Plaintiff alleges a Monell claim against Defendant for a “failure . . . to properly train or
supervise [its] subordinates[,] [which] amont[s] to ‘deliberate indifference’ to the rights of those
who come into contact with [its] employees.” (Id.) Plaintiff alleges he has experienced “stress,
anxiety, [and] emotional distress in conjunction with financial loss of $225,612” and requests
relief in the form of “$250,000 for pain, suffering, and financial loss.” (Id. at 5.)
III. Discussion
A. Duchess County
The Court construes Plaintiff’s allegations as arising under 42 U.S.C. § 1983. To state a
claim under § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or
laws of the United States was violated, and (2) the right was violated by a person acting under
the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48–49 (1988).
In addition, to state a § 1983 claim, a plaintiff must allege facts showing the defendant’s
direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y.
State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit
that personal involvement of defendants in the alleged constitutional deprivations is a
3

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 4 of 13

prerequisite to an award of damages under § 1983.”) (internal quotation marks and citation
omitted). A defendant may not be held liable under § 1983 solely because that defendant
employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.”). Under certain
circumstances, a plaintiff may bring claims against a municipality, but “Congress did not intend
municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy
of some nature caused a constitutional tort.” Monell, 436 U.S. at 691. Thus, “to prevail on a
claim against a municipality under [§] 1983 based on acts of a public official, a plaintiff is
required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or
statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality
caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
Plaintiff has brought suit solely against Duchess County, and Monell is the only basis for
liability that Plaintiff has alleged. (See SAC 4.) However, Plaintiff’s claim must fail because
Downstate Correctional Facility is operated by the State of New York (the “State”), not the
County. See, e.g., Banks v. McLaughlin, No. 19-CV-4127, 2019 WL 11890644, at *6 (S.D.N.Y.
July 8, 2019) (holding that “Downstate [is a] . . . state facility[y] [that] share[s] in [New York]’s
Eleventh Amendment immunity”). Because Plaintiff fails to state a claim against the County, his
Complaint is dismissed.
B. Leave to Replead
Plaintiff proceeds in this matter without the benefit of an attorney. District courts
generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its
defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has
4

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 5 of 13

cautioned that district courts “should not dismiss [a pro se complaint] 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) (quoting Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). In light of Plaintiff’s pro se status, the
Court grants Plaintiff 30 days’ leave to replead his claims in a third amended complaint against
appropriate defendants. No extensions will be granted.
CONCLUSION
The complaint is dismissed without prejudice for failure to state a claim on which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
If Plaintiff chooses to amend his complaint, he must submit the amended complaint to
this Court’s Pro Se Intake Unit within 30 days of the date of this order, caption the document as
an “Amended Complaint,” and label the document with docket number 16-CV-8871 (KMK).
An Amended Complaint form is attached to this order.
If Plaintiff fails to submit an amended complaint within the time allowed and does not
show good cause to excuse such failure, the Court will enter a civil judgment consistent with this
order and direct the Clerk of Court to terminate this matter.
Although the Clerk of Court issued summonses in this case, no answers are required until
further notice by the Court.

5

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 6 of 13

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

January 3, 2023
White Plains, New York
KENNETH M. KARAS
United States District Judge

6

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 7 of 13

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
Do you want a jury trial?
☐ Yes ☐ No

Write the full name of each defendant. If you need more
space, please write “see attached” in the space above and
attach an additional sheet of paper with the full list of
names. The names listed above must be identical to those
contained in Section II.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 8 of 13

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
☐ Federal Question
☐ Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

Page 2

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 9 of 13

If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Email Address (if available)

Zip Code

Page 3

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 10 of 13

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 3:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Page 4

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 11 of 13

Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

Page 5

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 12 of 13

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

Page 6

Case 7:16-cv-08871-KMK Document 50 Filed 01/03/23 Page 13 of 13

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
☐ Yes

☐ No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

Page 7