Bell v. Nassau Intrim Finance Authority

UNITED STATES DISTRICT COURT For Online Publication Only

EASTERN DISTRICT OF NEW YORK

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ANTHONY G. BELL, #16001767,

Plaintiff,

ORDER

-against- 16-CV-5447(JMA)(AYS)

NASSAU INTERIM FINANCE AUTHORITY,

THE STATE OF NEW YORK,

Defendants.

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AZRACK, United States District Judge:

The instant complaint is one of many in forma pauperis complaints that pro se plaintiff

Anthony G. Bell (“Plaintiff”) has filed with this Court.1 All of his prior complaints have been

dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B). The present complaint against the Nassau

Interim Finance Authority (“NIFA”) and the State of New York (“NYS”) is brought pursuant to

42 U.S.C. § 1983 (“Section 1983”), and purports to allege a deprivation of Plaintiff’s constitutional

rights. For the reasons that follow, the Court grants Plaintiff’s request to proceed in forma

pauperis and sua sponte dismisses the complaint claims pursuant to 28 U.S.C. § 1915(e)(2)(B).

I. BACKGROUND

All material allegations in the complaint are assumed to be true for the purpose of this

Order. See, e.g., Rogers v. City of Troy, New York, 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

1 See, e.g., 16-CV-2687(JMA)(AYS) Bell v. Cnty. of Nassau, et al.; 16-CV-2688(JMA)(AYS) Bell v. City of Long

Beach, LI, NY; 16-CV-2959(JMA)(AYS) Bell v. Sposato, et al.; 16-CV-3385(JMA)(AYS) Bell v. Bogle; 16-CV-

3664(JMA)(AYS) Bell v. State of New York; 16-CV-3665(JMA)(AYS) Bell v. Armor Corr. Health, Inc., et al.; 16-

CV-3931(JMA)(AYS) Bell v. New York State Comm. of Corr.et al.; 16-CV-4683(JMA)(AYS) Bell v. Nassau Cnty.,

et al.; 16-CV-4639(JMA)(AYS) Bell v. Armor Corr. Health Inc., et al.

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in the complaint as true).

Plaintiff is no stranger to this Court. Since May 25, 2016, plaintiff has filed more than ten

in forma pauperis complaints. Plaintiff’s sparse allegations appear to challenge the conditions of

his confinement during his incarceration at the Nassau County Correctional Center. The

“Statement of Claim” alleges, in its entirety:3

(NIFA) They control Nassau’s finances since 2011 and have approved all of

Armors contracts with Nassau County and the knew that Armor was being sued for

negligent care in jails across the country. Mangano the County Executive knew it

but they renewed the 2011 contract in 2013 anyway for two more years. NIFA

also knew of the complaints and did not care about inmates health or well being.

All they cared about was saving a few dollars. Also New York State is the

oversight board responsbile for approving Nassau’s financial dealings and contracts

and over the years have done nothing. New York state failed to keep this from

getting worse.

(Compl. ¶ IV.) In the space on the form complaint that calls for a description of any claimed

injuries and any medical treatment that was required and/or provided, Plaintiff alleges:

Poor medical treatment. I have HIV and was denied Atripla which I have been

taking for almost 4 ½ years and pysch meds. Also my asthma medication.

Armor would not get my C PAP machine fixed in almost 6 months where in I

suffered nose bleed all day and night. Also I did not get the proper rest which led

to more depression and anxiety as well mood swings.”

(Id. ¶ IV.A.) Plaintiff’s current complaint does not identify when this “poor medical treatment

occurred,” but his numerous other filings make clear that he was subject to this allegedly

inadequate medical treatment during his incarceration at the Nassau County Correction Center in

2016. See, e.g., Nov. 22, 2016 Order, Bell v. The City of Long Beach, 16-CV-2688(JMA)(AYS)

(recounting Plaintiff’s allegations that “Nassau County against Armour Health and Nassau County

3 Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling,

punctuation, and grammar have not been corrected or noted.

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Correction for medical neglect and housing in unsanitary conditions from Feb 16, 2016 till present

. . . .”).

II. DISCUSSION

A. In Forma Pauperis Application

Upon review of Plaintiff’s declarations 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 fees. 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s application to proceed in forma

pauperis is granted.

B. Standard of Review

The Prison Litigation Reform Act requires a district court to screen a civil complaint

brought by a prisoner against a governmental entity or its agents and 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, pursuant to the in forma

pauperis statute, a court must dismiss an action if it determines that it “(i) is frivolous or malicious,

(ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss

the action as soon as it makes such a determination. 28 U.S.C. § 1915A(b).

Pro se submissions are afforded wide interpretational latitude and should be held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In

addition, courts are required to read a plaintiff=s pro se complaint liberally and interpret it as raising

the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir.

2011) (per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

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Pro se plaintiffs, however, must still plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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 (2009) (citations omitted). The plausibility standard requires “more than a

sheer possibility that a defendant has acted unlawfully.” Id. at 678. 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.’” Id. at 678 (quoting Twombly, 550

U.S. at 555).

C. Section 1983

Section 1983 provides that:

Every 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 . . . .

42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for

vindicating federal rights elsewhere conferred by those parts of the United States Constitution and

federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); Thomas v.

Roach, 165 F.3d 137, 142 (2d Cir. 1999). In order to state a Section 1983 claim, a plaintiff must

allege two essential elements. First, the conduct challenged must have been “committed by a

person acting under color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)

(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Second, “the conduct complained

of must have deprived a person of rights, privileges or immunities secured by the Constitution or

laws of the United States.” Id.; see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). In

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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. Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).

1. Plaintiff’s Section 1983 Claims Are Barred by Sovereign Immunity

In interpreting the Eleventh Amendment, the Supreme Court has consistently held that

“nonconsenting states may not be sued by private individuals in federal court.” Bd. of Trustees

v. Garret, 531 U.S. 356, 363 (2001). This immunity extends to the state agencies and

departments. Papasan v. Allain, 478 U.S. 265, 276 (1986) (citing Pennhurst State School and

Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Congress has not abrogated Eleventh

Amendment immunity for claims under Section 1983, nor has New York waived immunity for

such claims. See, e.g., Sherman v. Harris, No. 11-CV-4385, 2012 WL 4369766, at *5 (E.D.N.Y.

Sept. 24, 2012). Accordingly, Plaintiff’s claims for monetary damages against NYS are barred

by the Eleventh Amendment.

NIFA is a public benefit corporation created by the State of New York in June 2000 in

response to the growing financial crisis facing Nassau County. N.Y. Pub. Auth. Law § 3650 et

seq. The NYS Legislature passed the NIFA Act, creating NIFA as a “corporate governmental

agency and instrumentality of the state constituting a public benefit corporation.” See N.Y. Pub.

Auth. Law § 3652(1); see also Carver v. NCIFA, 730 F.3d 150, 153 (2d Cir. 2013). NIFA is

“administered by seven directors appointed by the governor.” See N.Y. Pub. Auth. Law §

3653(1).

The Court finds that NIFA is likely entitled to sovereign immunity, which precludes

Plaintiff’s Section 1983 claim against NIFA. See Carver v. Nassau Cty. Interim Fin. Auth., 730

F.3d 150, 156 (2d Cir. 2013) (indicating, without deciding, that the question of whether NIFA is

entitled to sovereign immunity was “an arguably close question”); see also Brief for Defendants-

Appellants, Carver v. Nassau Cty., Nos. 13-CV-0801, 13-CV-0840, 2013 WL 1623592 (2d Cir.

Apr. 3, 2013) (explaining why NIFA is entitled to sovereign immunity); Reply Brief for

Defendant-Appellants, Carver v. Nassau Cty., Nos. 13-CV-0801, 13-CV-0840, 2013 WL 2364620

(2d Cir. May 22, 2013) (same). In any event, even if NIFA is not entitled to sovereign immunity,

Plaintiff’s claims against NIFA also fail for the two additional reasons set forth below.

2. Plaintiff Fails to Allege a Plausible Monell Claim Against NIFA

It is well-established that municipalities may only be held liable under Section 1983 if the

plaintiff proves that “action pursuant to official municipal policy of some nature caused a

constitutional tort.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691

(1978). Even if NIFA were not entitled to sovereign immunity, Plaintiff would have to plausibly

allege that some official policy or custom of NIFA caused the underlying constitutional tort at

issue. Here, the underlying constitutional tort is a deliberate indifference claim stemming from

the allegedly poor medical treatment that Plaintiff received from Armour Correctional Health, Inc.

(“Armour”) while he was incarcerated at the Nassau County Correctional Facility in 2016. As

explained below, Plaintiff has not plausibly alleged that any action by NIFA caused his alleged

constitutional injury.

Plaintiff alleges that NIFA is responsible for Armour’s misconduct because: (1) NIFA

knew that Armour was being sued for negligent care in jails across the country; and (2) despite

that knowledge, NIFA, which controls Nassau County’s finances, still “renewed the 2011 contract

[between Armour and the County] in 2013 for two more years.” (Compl. at 4.) This argument

is flawed because Plaintiff was incarcerated in 2016 and all of the misconduct by Armour that

allegedly injured Plaintiff occurred in 2016. Plaintiff, however, only alleges that NIFA approved

a two-year renewal of Armour’s contract in 2013 and does not allege that NIFA approved the

Armour contract that was in place in 2016 when Plaintiff was allegedly subject to mistreatment.

Thus, even assuming that NIFA’s approval of a Nassau County contract could constitute an

actionable policy decision under Monell, Plaintiff has not plausibly alleged that NIFA’s approval

of the two-year renewal of Armour’s contract with Nassau County in 2013 caused the alleged

underlying constitutional violation here, which occurred in 2016.6 Accordingly, Plaintiff has

failed to state a plausible claim against NIFA.

3. Res Judicata Precludes Plaintiff’s In Forma Pauperis Suit Against Both NIFA and

NYS

Prior to filing the present suit against NIFA and NYS, Plaintiff filed numerous other in

forma pauperis suits against different defendants, including Nassau County, Armour, NYS, and

various individuals employed by Nassau County and Armour, premised on the same alleged failure

to provide proper medical treatment during Plaintiff’s incarceration in 2016. See, e.g., Nov. 22,

2016 Order, Bell v. The City of Long Beach, 16-CV-2688 (JMA)(AYS) (suing Nassau County);

Nov. 22, 2016 Order, Bell v. County of Nassau, 16-CV-2687 (JMA)(AYS) (suing Nassau County

and Armour); Nov. 22, 2016 Order, Bell v. Sposato, 16-CV-2959 (JMA)(AYS) (suing the Nassau

County Sheriff and the Nassau County Executive); Nov. 22, 2016 Order, Bell v. State of New

York, 16-CV-3664 (JMA) (AYS) (suing New York State). All of these suits were dismissed for

pursuant to 28 U.S.C. § 1915(e)(2)(B).

Prior dismissals under § 1915(e) have res judicata effect on frivolousness determinations

for subsequent in forma pauperis applications. Cieszkowska v. Gray Line New York, 295 F.3d

204, 205 (2d Cir. 2002). Under the doctrine of res judicata (which is also known as claim

preclusion), “‘once a final judgment has been entered on the merits of a case, that judgment will

6 Any Monell claim against NIFA would also fail because Plaintiff has not alleged when NIFA learned that Armour

was being sued for negligent care in jails “across the country.” Moreover, the mere fact that an unspecified number

of negligence suits were filed against Armour would not be sufficient to plausibly allege that NIFA was deliberately

indifferent to constitutional violations at the Nassau County Correctional Facility.

bar any subsequent litigation by the same parties or those in privity with them concerning the

transaction, or series of connected transactions, out of which the [first] action arose.’” Id.

(quoting Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)). Even if the defendants

in the two actions are different, res judicata still applies if the defendants in the two actions are in

privity with each other. See Shockley v. Hosterman, 279 F. App’x 98, 99 (3d Cir. 2008) (finding

res judicata required dismissal of second in forma pauperis suit pursuant to 28 U.S.C. § 1915 and

explaining that the plaintiff’s “attempt to add John Doe Prison Officials to the other defendants he

named before” in earlier suit that was dismissed pursuant to 28 U.S.C. § 1915 did negate preclusive

effect of the prior dismissal because the defendants were “are all prison officials in privity with

one another”); Clissuras v. E.E.O.C., No. 89-CV-5869, 1990 WL 209415, at *1 (S.D.N.Y. Dec.

10, 1990) (“Government agencies are in privity where, as here, a party loses an action with a

government agency and then seeks to relitigate the same issues with a second, related government

agency.”).

Res judicata precludes the instant in forma pauperis suit against NYS because NYS was

previously named as a defendant in one of Plaintiff’s prior in forma pauperis suits that was

dismissed.

Although NIFA was not previously named as a defendant in any of the prior suits, because

NIFA was in privity with other defendants that were named in those prior suits, res judicata also

precludes the instant in forma pauperis suit against NIFA. If NIFA did, in fact, approve the

contract between Nassau County and Armour that was in place in 2016, that would be sufficient

to establish that NIFA was in privity with Nassau County (and possibly also with Armour as well)

such that res judicata would apply to the instant suit against NIFA, requiring dismissal.7 See

7 There may also be other aspects of the relationship between Nassau County and NIFA that would establish privity.

It is, however, unnecessary to explore that issue further here.

Cieszkowska, 295 F.3d at 205 (applying res judicata to dismissals under § 1915(e)). Thus, even

if NIFA were not entitled to sovereign immunity and NIFA did approve the Armour contract that

was in place in 2016, Plaintiffs’ claim against NIFA would still be subject to dismissal based on

res judicata.

D. Leave to Amend

Pro se plaintiffs are ordinarily given the opportunity “to amend at least once when a liberal

reading of the complaint gives any indication that a valid claim might be stated.” Shomo v. City

of New York, 579 F.3d 176, 183 (2d Cir. 2009). However, “‘leave to amend a complaint may be

denied when amendment would be futile.’” Byng v. Delta Recovery Servs. LLC, 568 F. App’x

65, 66 (2d Cir. 2014) (quoting Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006)).

Here, the Court has carefully considered whether plaintiff should be granted leave to amend

his complaint. Because the deficiencies in the complaint set forth above cannot be cured in an

amended complaint, any amendment would be futile. Accordingly, leave to file an amended

complaint is denied.

III. CONCLUSION

For the forgoing reasons, Plaintiff’s application to proceed in forma pauperis is granted,

but the complaint is sua sponte dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). 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 (1962).

The Clerk of Court is directed to close this case and to mail a copy of this Order to Plaintiff.

SO ORDERED.

Dated: September 30, 2019

Central Islip, New York

/s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE