Ravenell v. County of Nassau

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

THEODORE RAVENELL,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-6010(JS)(AKT)

COUNTY OF NASSAU, NASSAU COUNTY

LEGAL AIDE SOCIETY, LEGAL AIDE

ESTEFANIA TARANTO, PETER MENOUDAKOS,

JUDGE DOUGLAS LEROSE, DOMINIC

DIMAGGIO, A. GRAVIN, J. PECCA,

Defendants.

-----------------------------------X

THEODORE RAVENELL,

Plaintiff,

-against- 19-CV-2941(JS)(AKT)

PETER MENOUDAKOS, JR.,

CHRISTOPHER DEVANE, JUDGE

DOUGLAS LEROSE,

Defendants.

-----------------------------------X

THEODORE RAVENELL,

Plaintiff,

-against- 19-CV-2942(JS)(AKT)

NASSAU COUNTY PROBATION DEPARTMENT,

DOMINIC DIMAGGIO, A. GRAVIN,

J. PECCA,

Defendants.

-----------------------------------X

-----------------------------------X

THEODORE RAVENELL,

Plaintiff,

-against- 19-CV-2943(JS)(AKT)

NASSAU COUNTY CORRECTIONAL SERVICES

DEPT., DR. HENNING, RN SANDRA JONES,

SGT. CUNNINGHAM, CPL. LANNING, C.O.

BYZENTE,

Defendants.

-----------------------------------X

APPEARANCES

For Plaintiff: Theodore Ravenell, pro se

353 Hempstead Turnpike, Apt. 2

Elmont, New York 11003

For Defendants:

Legal Aide Society

of Nassau County,

and Estefania

Taranto: Gregg D. Weinstock, Esq.

Karolina M. Wiaderna, Esq.

Vigorito, Barker, Patterson, Nichols

& Porter LLP

300 Garden City Plaza, Ste. 308

Garden City, New York 11530

For All Other

Defendants: No Appearances.

SEYBERT, District Judge:

Pending before the Court are four civil rights

Complaints filed by pro se plaintiff Theodore Ravenell

(“Plaintiff”). Because the Complaints concern the same underlying

state court criminal proceeding, the Complaints are CONSOLIDATED

pursuant Federal Rule of Civil Procedure 42. For the reasons

2

outlined in this Order, Plaintiff’s applications to proceed in

forma pauperis are GRANTED. However, Plaintiff’s claims are

DISMISSSED, IN PART, pursuant to 28 U.S.C. §§ 1915(e)(2)(B),

1915A(b).

BACKGROUND

I. 18-CV-6010(JS)(AKT) Ravenell v. Cty. of Nassau, et al.

(“Ravenell I”)

On June 5, 2018, Plaintiff filed a Complaint in the New

York State Supreme Court, County of Nassau, against the County of

Nassau1, the Nassau County Legal Aide Society (“Legal Aide”), and

Legal Aide Estefania Taranto (“Taranto”) alleging a deprivation of

his constitutional rights in connection with, inter alia,

Taranto’s representation of Plaintiff during an underlying

criminal prosecution (the “state criminal case”) and seeking to

recover a damages award in the sum of $1 million. (See Compl.,2

1 The Court notes that the “County of Nassau” was preprinted in

the caption on the form Plaintiff used for his state court

Complaint. Upon review of the Complaint, Plaintiff does not

appear to allege any claims against, or seek relief from, the

County of Nassau. Moreover, the Amended Complaint filed by

Plaintiff in this Court on April 25, 2019 does not include the

County of Nassau as a party. Accordingly, Plaintiff’s claims

against the County of Nassau are DISMISSED WITHOUT PREJUDICE.

2 The Court will use the page numbers assigned by the Court’s

Electronic Case Filing System (“ECF”) when referring to the

Complaint. The entireComplaint can be found at Docket Entry 1

at ECF pp. 9-16.

3

at ECF pp. 9-10.)

Defendants removed Plaintiff’s Complaint to this Court

on October 26, 2018 and filed a motion to dismiss the Complaint on

February 1, 2019. Given Plaintiff’s failure to oppose the motion

to dismiss, and to comply with the Court’s March 20, 2019

Electronic Order which ordered Plaintiff to respond to the

Electronic Order, the Court issued an Electronic Order to Show

Cause requiring Plaintiff to, by April 25, 2019, either file

opposition to the motion to dismiss or file a letter indicating a

willingness to proceed with the case but not file opposition and

an affidavit showing good cause for his failure to comply with the

Court’s March 20, 2019 Electronic Order. The Court stayed this

case pending its review of these filings. (See Apr. 11, 2019

Elec. Order.)

On April 25, 2019, Plaintiff filed a letter asking the

Court to “forgive [ ] my lateness in addressing this matter

[because] I am a person with disabilities, psychological in

nature.” (Letter, D.E. 17, at 1.) Plaintiff also filed, on

April 25, 2019, an unauthorized Amended Complaint, a Supplement to

his Amended Complaint, and another application to proceed in forma

pauperis.3 Plaintiff did not file opposition to the motion to

3 Plaintiff’s Amended Complaint, (D.E. 18), and Supplemental

Amended Complaint, (D.E. 18-1), are hereinafter referred to as

4

dismiss or a statement expressing a willingness to proceed with

the action but not file opposition to the motion to dismiss.

Given Plaintiff’s pro se status, the Court has reviewed

the Amended Complaint and construes it as an expression of

Plaintiff’s willingness to proceed with this action and as a

Supplement to his Complaint. Accordingly, the Court now LIFTS THE

STAY, and DENIES the application to proceed in forma pauperis filed

on April 25, 2019 as MOOT, because Defendants paid the filing fee

when this case was removed to this Court.

The Supplement continues to name Legal Aid and Taranto

as Defendants, but also adds Plaintiff’s 18B attorney Peter

Menoudakos, Jr. (“Menoudakos”), Judge Douglas Lerose (“Judge

Lerose”), the Chief Attorney of Nassau County Probation Dominic

DiMaggio (“DiMaggio”), Probation Supervisor A. Gravin (“Gravin”),

and Probation Officer J. Pecca (“Pecca”). The Complaint and the

Supplement allege that DNA evidence was improperly used against

Plaintiff in the underlying criminal case and, in conclusory

fashion, that all Defendants conspired against Plaintiff to

deprive him of his constitutional rights. (See generally Compl.

and Supp.) Plaintiff’s Complaint alleges that:4

“Supplement;” see also Plaintiff’s Second IFP Motion, (D.E. 19).

4 Excerpts from the Complaints and Supplement are reproduced here

exactly as they appear in the original. Errors in spelling,

5

Judge Lerose did violate Mr. Ravenell’s

constitutional amendment rights. Ms. Taranto

was assigned to my case an entire year and not

once did Ms. Taranto mention anything about a

DNA inclusion. It took Judge Lerose an entire

year to convict me. By waiting so long to

convict me after arraignment Judge Lerose lost

his jurisdiction to extract a DNA sample for

inclusion. These are the things in a trial

that Ms. Taranto should have known about or

expected. I entered a plea deal 2/26/16 with

Taranto, and she being my public defender DID

not defend my constitutional or amendment

rights and allowed Judge Lerose to violate me

and my rights. CPL rules that the Courts have

45 days to collect a DNA sample for inclusion.

So because Judge Lerose lost his jurisdiction

over my DNA sample and its inclusion into the

databank. Ms. Taranto and Peter Menoudakos

knew or should have known that Judge Lerose

did in fact along with the ADA and the District

Attorney office DID in fact conspire to rob

Mr. Ravenell of his civil liberties and his

freedom.

(Compl. ¶ 5, at ECF p. 9.) Plaintiff also alleges in his

Complaint that:

Judge Lerose accepted a plea bargain deal with

Estefania Taranto as legal aide on 1/21/16 a

plea deal was accepted by Judge D. Lerose with

all petit larceny’s and felonies. NYS

requires a DNA inclusion at the end of every

conviction. Now in 2007 I had a DNA inclusion

that I dodged because I did not know about it.

In 2007 the DNA ruling was an administration

regulations ruling. So at the time the courts

were not required to extract samples. It was

on a voluntary basis. I never received a

notice from the court. So by accepting my

plea Judge Lerose had 45 days from the plea to

conviction to extract. My conviction took one

punctuation, and grammar have not been corrected or noted.

6

year to depose. I accepted plea deal 1/21/16

so 45 days from that date would make it between

March 3 to March 25 give or take two weekends.

So legally Judge Lerose finalized the plea in

March with two months of (CRP) conditional

release to probation. So this is what Douglas

Lerose does, because he knows he can not

extract a DNA sample. He cook’s the legal

books by despencing his own laws and breaking

the law by going into a closed petit larceny

case and using the DNA article on the 2007

conviction date 6/1/2007 NYSID# 5406013R and

used this information as an extortion tool .

. . . All of the attorneys in the case entered

into a conspiracy with Douglas Lerose, who

does not deserved to be called a judge when he

placed that inadmissible defective article of

my probation conditions. He basically said

fuck the constitution and violated mine in the

process. . . .

(Compl., at ECF pp. 11-12.)

The Supplement is largely the same. Plaintiff continues

to complain about the representation provided by his “three

incompetent lawyers Estafania Taranto, Peter Menoudakos, and

Christopher Devane” and alleges that “if not for these three inept

stoogies I would not have gone to jail behind fraudulent

jurisdictional issues.” (Supp. ¶ III.C., at ECF p. 6.) However,

in addition to the challenges to his criminal conviction based on

his guilty plea, Plaintiff also complains in the Supplement that,

on April 19, 2016, he was assaulted by two Nassau County Police

officers and suffered injuries to his back, neck, and knees.

(Supp. ¶ IV., at ECF p. 7.) Plaintiff claims that he “filed a

7

report with I.A. [on] April 20, 2016 . . . [and] slipped at the

top of Courthouse stairs and fell down flight rushed to Winthrop.”

(Supp. ¶ IV., at ECF p. 7.) Plaintiff next describes another

injury, alleged to have occurred on May 16, 2017, wherein he “fell

off prison bus at DOCS facility head, neck, back, knees injured.

Staff took my case, I was made to hobble up & down Courthouse

stairs. And I suffered a third fall when DOCS staff put me in a

cell with no wheel chair access.” (Supp. ¶ IV., at ECF pp. 7,

13.)

For relief, Plaintiff “would like the Court to

investigate” and seeks to recover a damages award in the total sum

of $1 million dollars. (Compl. ¶ 8, at ECF p. 10; Supp. ¶ V., at

ECF p. 7.)

II. 19-CV-2941(JS)(AKT) Ravenell v. Menoudakos, Jr., et al.

(“Ravenell II”)

On May 16, 2019, Plaintiff filed three more Complaints

relating to the same, underlying state court criminal conviction

as he alleged in Ravenell I, together with applications to proceed

in forma pauperis in each case. The Complaint in Ravenell II is

submitted on the Court’s Section 1983 complaint form and names

Judge Lerose and Plaintiff’s 18B lawyers, Menoudakos, and Devane,

as Defendants. Like Ravenell I, Plaintiff complains about rulings

made by Judge Lerose and the representation by Menoudakos and

8

Devane during the underlying state criminal case. Plaintiff again

challenges his conviction by alleging that inadmissible evidence,

namely DNA evidence, was used against him in violation of his due

process rights. In its entirety, Plaintiff’s Statement of Claim

alleges:

A. Judge Lerose lost DNA jurisdiction as of

12/6/2016 sentence date. Mr. Menoudakos

was never supposed to be my lawyer. He

represented me against my will.

Christopher Devane was fired as Judge

Lerose reassigned him.

B. 12/6/2016 at sentencing is when my

constitutional rights were violated. Judge

Lerose know he violated my rights when he

lost DNA jurisdiction in March of 2016.

C. Judge Lerose used inadmissible evidence to

garner a conviction. This information came

from a 2007 conviction which also had a

lapsed DNA inclusion that the state could

not enforce. The judge used this

information to create a conspiracy to force

a DNA inclusion. After he reassigned LA

Taranto he used Menoudakos and had the

charge reduced. All parties were privee.

I spoke to all officials in the court

system. The District was involved all the

lawyers, I had knew because I complained to

anyone who would listen. Ms. Taranto was

assigned my case in Feb./March, she failed

to up hold the colores of state when she

failed to realize when Judge Douglas Lerose

lost his jurisdiction to the DNA inclusion

that must be met. The DNA inclusion has a

limitation after a certain amount of time

has elapsed. The DNA inclusion window

closes after forty days after arraignment.

So if a Judge times elapses on DNA inclusion

and the judge pasts his limitation of the

statuts DNA inclusion can no longer be

enforced. So a judge can’t leave anything

9

up to the next Dep’t like say probation to

catch anything the Judge may lose

jurisdiction on a closing. My rights have

been violated by every state official in

the criminal justice dept. When Miss

Taranto was my lawyer for a entire year,

and Judge Lerose would not lower the charge

at all. When Mr. Menoudakos was assigned,

the Judge “Lerose” actively lowered the

charge from petit larceny to attempted

petit larceny. Judge Lerose could not

illegally sentence me with one year

probation without lowering the charge now

where is what he did legal.

(Ravenell II, Compl., D.E. 1, ¶ III., at ECF pp. 5-6.) Although

the allegations in this Complaint relate solely to the underlying

state court criminal prosecution, in the space on the form

Complaint that calls for a description of any claimed injuries,

Plaintiff alleges

After I was injured while being illegally

detained and imprisoned in DOCS he fall from

prison bus injured head neck back knees hip

feet. I have had several operation knees &

foot still need more surgerys.

(Ravenell II, Compl. ¶ IV., at ECF p. 7.) For relief, Plaintiff

seeks

. . . justice. I want everyone involved to

pay charges for the misuse of judicial power,

I want financial compensation. The basis for

these claims are the Judge violated my

constitutional rights all the lawyers and

probation staff all conspired to violate my

rights. I also filed complaints with the

state.

(Ravenell II, Compl. ¶ V., at ECF p. 7.)

10

III. 19-CV-2942(JS)(AKT) Ravenell v. Nassau Cty. Probation

Dep’t, et al. (“Ravenell III”)

Ravenell III was also filed on May 16, 2019 together

with an application to proceed in forma pauperis. It is submitted

on the Court’s Section 1983 Complaint form and names the Nassau

County Probation Department, Dominic DiMaggio, Chief Attorney of

Probation Department (“DiMaggio”), and two probation officers, A.

Gravin and Pecca, as Defendants. Like Ravenell I and II, Plaintiff

complains that he was deprived of due process during the underlying

state criminal case. Plaintiff again challenges his conviction

by alleging that inadmissible evidence, namely DNA evidence, was

used against him in violation of his due process rights. In its

entirety, Plaintiff’s Statement of Claim alleges:

A. 12/6/2016 probation report condition

illegale supervisor A. Gravin threaten to

have me incarcerated if I did not comply

with DNA inclusion.

B. March 20, 2017 P.O. Gravin said if I did

not do what I was told to do she would put

me in jail. (I have that conversation

recorded on tape).

C. Fact one: Judge Lerose did illegal

probation sentencing 12/6/2016 using a

defective article on a prior conviction.

The Judge wrote in a stipulation on the

probation condition that I owed a DNA

inclusion, who else was involved, the

entire clerk’s office, the DA’s office,

every one of my lawyers. This Judge broke

the law. He lost his jurisdiction in a

case. He cheated he could not except that

he made a mistake. He should have let it

go by him using the Court to conspire

11

against me broke the law that he serves.

(Ravenell III, Compl. ¶ III., at ECF p. 6.) Plaintiff also filed

a one-page attachment to this Complaint. In its entirety,

Plaintiff alleges:

Probation officer Pecca was the only probation

official who listened to me. I explained to

Officer Pecca on Dec. 6, 2016 at probation

that the Judge Lerose illegally sentenced me.

And that I need time to pull this case back in

front of the sentencing Judge. I explained

to P.O. Pecca that I would only give urine

samples and no DNA. He said he had no problem

with that so during the course of fourth

months no problems. Then Pecca’s supervisor

is brought in. And she tells me that I have

to go to a drug dependency screening at drug

& alcohol. I refused to go. She threatened

me and told me she would lock me up if I did

not comply. Remember now, this is all about

the DNA inclusion. She asks for the DNA. I

said the Judge lost jurisdiction and she says

I am not the judge. So she scheduled me for

another drug screening. I don’t go because

no one has jurisdiction to the inclusion. So

before I am violated I have a talk with

Probation Attorney Dominic DiMaggio. And I

explain to yet another official in the

criminal justice loop what the Judge Douglas

Lerose did in his Court and the loss of

jurisdiction on the inclusion. So after

DiMaggio blows me off and says there is

nothing he can do. I said “you could send it

back to court” the judge lost jurisdiction on

the DNA and he says not my problem. So two

weeks later I had him served in civil court.

He did not respond to the summons. So

DiMaggio failed as well under the auspices and

colors of the state. And he violated my

constitutional rights.

(Ravenell III, Compl. at ECF p. 5.) In the space on the form that

12

call for a description of any claimed injuries Plaintiff alleges:

I am a (PWD) the stress alone is enough.

May 16, 2017 I fell off the back of a prison

bus. Because the state did not protect me

from harm. A CO Byzente took my cane from me

a detention center DOCS. I injured my head,

neck, back, shoulders, knees, and feet.

(Ravenell III, Compl. ¶ IV., at ECF p. 7.)

For relief, Plaintiff

want[s] justice. Staff member should be

charge for crimes committed against me. Yes

the state owes me money damages 1,000,000.00

to start. Because if not for rogue Judge

Douglas Lerose and his conspiracy to

conviction with his inadmissible evidence that

he filed on that probation report. Probation

would never had reason to violate my rights.

I have filed several complaints with the

state.

(Ravenell III, Compl. ¶ V., at ECF p. 7.)

IV. 19-CV-2943(JS)(AKT) Ravenell v. Nassau Cty. Corr. Svcs., et

al. (“Ravenell IV”)

Ravenell IV was also filed on May 16, 2019 together with

an application to proceed in forma pauperis. It is submitted on

the Court’s Section 1983 Complaint form and names the Nassau County

Correctional Services Department, Dr. Henning, RN Sandra Jones,

Sgt. Cunningham, Cpl. Lanning, and C.O. Byzente as Defendants.

Like Ravenell I, II, and III, Plaintiff again complains that he

was deprived of due process during the underlying state criminal

case. Plaintiff again challenges his conviction by alleging that

13

inadmissible evidence, namely DNA evidence, was used against him

in violation of his due process rights. Plaintiff alleges:

D. Remanded May 16, 2017 by Judge Lerose after

failed attempts by probation staff to

extract illegal DNA inclusion sample that

Judge Lerose lost jurisdiction on illegally

detained and incarcerated May 16 at DOCS.

Jail staff took my cane at Court. And then

fell off back of bus injured neck, back,

knees, feet, shoulders. Then was rushed to

Nassau hospital.

So after Judge Lerose had probation violate

for non-compliance in giving a DNA

inclusion sample that Judge Lerose lost

jurisdiction before he sentenced me to the

illegal probation sentence. While in 72

hour medical hold on May 18 2017 Sgt.

Cunningham call me out and said that Judge

Lerose sent a DNA kit. And if I take it

Sgt. Cunningham was authorized to release

me immediately. I told the sergeant what

the Judge can do. So Sgt. Cunningham at

the Judge’s request also violated my

amendment and constitutional rights by

obstructing administrative justice. By

trying to coerce me into compliance, when

they had no jurisdiction. Returning from

Nassau medical hospital May 24, 2017, I

returned in a wheel chair to the medical

unit at DOCS that’s when Corporal Lanning

put me in Cell 17 with three other inmates.

This was a four man room with an enclosed

bathroom toilet which I could not use.

Cpl. Lanning failed to uphold the states

colors and DOCS auspices. When he failed

to house a disability person in a four man

room with no toilet accessibility. Dr.

Henning also failed to uphold the states

colors. She was never supposed to allow a

disabled inmate in a wheelchair, no access

to the bathroom in a four man room. RN

Sandra Jones upheld the states colors only

14

in giving me medical assistance when I feel

out of wheelchair trying to crawl to

bathroom closed door, hitting me head on

the steel frame of bed and cutting it open

and injuring my back from fall off bus.

May 16, 2017 was removed from medical tier

because I did not wait to be exposed to sick

inmate. So C.O. Byzente took my cane and

took me to the 72 hour holding cells. C.O.

Byzente failed to uphold hos colors of state

and the auspices of DOCS when he relieved

me of my walking aid which in turn if I had

had my cane I would have never fallen off

he prison bus.

(Ravenell IV, Compl., D.E. 1, ¶ II., at ECF pp. 5-7.) In the

space on the form that call for a description of any claimed

injuries Plaintiff alleges:

Same as state in all other filings. I am a

(PWD). May 16, 2017 I fell off a prison

escort bus because Officer Byzente took my

cane before transit to next jail. I injured

my head, neck, back, shoulders, knees, and

feet.

(Ravenell IV, Compl. ¶ IV., at ECF p. 9.) For relief, Plaintiff

“want[s] justice. All staff members should be charged

for obstruction of justice. Yes State owes me money

damages 1,000,000.00 to start because if not for a rogue

Judge Douglas Lerose and his conspiracy to conviction

with inadmissible evidence that he filed on the

probation report probation would never had reason to

violate my rights. I have also filed several complaints

with the state.

(Ravenell IV, Compl. ¶ V., at ECF p. 9.)

DISCUSSION

I. In Forma Pauperis Applications

15

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 Ravenell II, III, and IV

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.

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.” FED. R. CIV.

P. 42(a). “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 common questions of law or fact is 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 citation omitted).

“The Second Circuit has long adhered to the first-filed

doctrine in deciding which case to dismiss where there are

competing litigations. Where there are several competing

16

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

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, Plaintiff’s Complaints are largely repetitive and

certainly involves common issues of law and fact. Accordingly,

in the sound exercise of its discretion, the Court orders that

Plaintiff’s cases be CONSOLIDATED pursuant to Federal Rule of Civil

Procedure 42 into the first filed case, 18-CV-6010(JS)(AKT). The

Clerk of Court is DIRECTED to: (1) consolidate these actions; and

(2) mark the cases assigned Docket Numbers 19-CV-2941, 19-CV-2942,

and 19-CV-2943 CLOSED. Any future filings are to be docketed in

only 18-CV-6010(JS)(AKT).

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

17

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 relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii),

1915A(b). The Court is required to dismiss the action as soon as

it makes such a determination. 28 U.S.C. § 1915A.

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.’”

18

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

A. Heck v. Humphrey Bars Plaintiff’s § 1983 Claims

Challenging the Underlying Criminal Conviction

When a claim for damages under § 1983 calls into question

the validity of an underlying conviction, a district court must

dismiss the claim, unless the conviction has been invalidated.

Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 129 L.

Ed. 2d 383 (1994). The petitioner in Heck was an inmate with a

direct appeal from his conviction pending, who brought a § 1983

action for damages against state officials who, he claimed, acted

unconstitutionally in arresting and prosecuting him. Drawing an

analogy to the tort of malicious prosecution, the Supreme Court

held that an inmate’s § 1983 claim for damages was unavailable

because he could not demonstrate that the underlying criminal

proceedings had terminated in his favor. Id. at 486-87. The

Supreme Court in Heck enumerated four methods of demonstrating

that a conviction has been invalidated: (1) the conviction was

reversed on a direct appeal; (2) an executive order expunged the

conviction; (3) a habeas corpus petition was issued by a federal

court; or (4) an authorized state tribunal declared the conviction

invalid. Id.

Here, as is readily apparent and, affording the pro se

Complaints a liberal construction, Plaintiff does not allege that

19

his conviction has been invalidated. Because Plaintiff’s success

on his civil rights claims relating to the criminal prosecution

would necessarily invalidate the conviction, which is not alleged

to have been reversed or vacated, Plaintiff’s Section 1983 claims

are not cognizable under Heck. Thus, Heck’s bar precludes the

adjudication of Plaintiff’s Section 1983 claims5 that challenge

his underlying criminal conviction and they are thus DISMISSED

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).6

5 Although Ҥ 1983 remains a possible remedy when there is no

other federal avenue through which to bring a claim”, Chillemi

v. Town of Southampton, 943 F. Supp. 2d 365, 375 (E.D.N.Y.

2013), Plaintiff has the opportunity to seek habeas relief once

his constitutional claims are properly exhausted in state court.

6 Although Heck bars Plaintiff’s claims seeking to impose Section

1983 liability on Judge Lerose, DiMaggio, Gravin, Pecca, Nassau

County Legal Aide Society, Taranto, Menoudakos, and Devane, these

claims would fail for additional reasons. Plaintiff’s Section

1983 claims seek money damages against Nassau County Probation

Department, Judge Lerose, DiMaggio, Gravin, Pecca and are barred

by the Eleventh Amendment. The Eleventh Amendment bars suits

brought by a state’s own citizens against it in federal court.

U.S. CONST. amend. XI. And, insofar as Plaintiff alleges claims

for prospective injunctive relief against Judge Lerose, such

claims are barred by absolute judicial immunity. Mireles v. Waco,

502 U.S. 9, 11, 112 S. Ct. 286, 287, 116 L. Ed. 2d 9 (1991)

(“[J]udicial immunity is an immunity from suit, not just from

ultimate assessment of damages.”) Additionally, the Nassau County

Legal Aide Society, Taranto, Menoudakos, and Devane are not state

actors subject to liability under Section 1983. “[T]he under-

color-of-state-law element of § 1983 excludes from its reach

merely private conduct, no matter how discriminatory or wrongful.”

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct.

977, 985, 143 L. Ed. 2d 130 (1999) (internal quotation marks and

citations omitted). While private actors may be considered to be

20

B. Section 1983 Claims Concerning Plaintiff’s Alleged

Physical Injuries and/or Medical Care

Apart from the claims relating to the underlying State

court criminal prosecution, Plaintiff complains that, on April 19,

2016, he was assaulted by two Nassau County police officers. (18-

CV-6010 Suppl. ¶ IV, at ECF p. 7.) However, Plaintiff does not

include any Nassau County police officers as Defendants.

Plaintiff also alleges that he “slipped at the top of Courthouse

stairs and fell down flight rushed to Winthrop.” (18-CV-6010

Suppl. ¶ IV., at ECF p. 7.) Further, Plaintiff claims that, on

acting under the color of state law for purposes of § 1983 if the

private actor was a “willful participant in joint activity with

the State or its agents” or where a private party conspires with

a state actor to violate a plaintiff’s constitutional rights,

Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323-24 (2d Cir. 2002)

(internal quotation marks and citations omitted), a “[a] merely

conclusory allegation that a private entity acted in concert with

a state actor does not suffice to state a § 1983 claim against the

private entity.” Ciambriello, 292 F.3d at 324 (citations

omitted). Moreover, attorneys, whether with the Legal Aid

Society, court-appointed, or privately retained, are generally not

state actors for purposes of Section 1983. See, e.g., Polk Cty.

v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 453, 70 L. Ed. 2d

509 (1981); see also Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d

Cir. 1997) (“[I]t is well-established that court-appointed

attorneys performing a lawyer’s traditional functions as counsel

to [a] defendant [in a criminal proceeding] do not act ‘under color

of state law’ and therefore are not subject to suit under 42 U.S.C.

§ 1983”) (citations omitted). As is readily apparent, even if

Heck did not preclude Plaintiff’s Section 1983 claims against Judge

Lerose, DiMaggio, Gravin, Pecca, the Nassau County Legal Aide

Society, Taranto, Menoudakos, and Devane, Plaintiff’s sparse and

conclusory allegations do not allege a plausible Section 1983

claims against any of these Defendants.

21

May 16, 2017, he “fell off prison bus at DOCS facility” and that

his “head, neck, back, [and] knees [were] injured.” (18-CV-6010

Suppl. ¶ IV., at ECF pp. 7, 13.) Finally, Plaintiff alleges that

he “suffered a third fall when DOCS staff put me in a cell with no

wheel chair access.” (18-CV-6010 Suppl. ¶ IV., at ECF pp. 7, 13.)

Though thin, Plaintiff’s claims relating to his falls

and injuries while in the custody of the Nassau County Department

of Corrections shall proceed. Accordingly, the Court ORDERS that

the Clerk of the Court issue summonses to Dr. Henning, RN Sandra

Jones, Sgt. Cunningham, and Cpl. Lanning and that such summonses

SHALL BE FORWARDED to the United States Marshal service together

with copies of Plaintiff’s consolidated Complaints for service

upon these individuals forthwith.

To the extent that Plaintiff seeks relief against the

“Nassau County Correctional Services Department”, such claims are

implausible because it is an administrative arm of Nassau County

and thus lacks the capacity to be sued as a separate entity. See,

e.g., Clements v. Nassau Cty. Corr. Ctr., 10-CV-0422, 2010 WL

1779985, * 3 (E.D.N.Y. Apr. 30, 2010). 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, Nassau County, and

22

finds that he has not for the reasons that follow.

It is well-established that a municipality such as

Nassau County cannot be held liable under § 1983 on a respondeat

superior theory. See Monell v. Dep’t of Soc. Servs. of N.Y. City,

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

also Monell, 436 U.S. at 690-91. “[L]ocal governments . . . may be

sued for constitutional deprivations visited pursuant to

governmental ‘custom’ even though such a custom has not received

formal approval through the body’s official decisionmaking

channels.” Monell, 436 U.S. at 690-91 (internal citation

omitted).

To establish the existence of a municipal policy or

custom, the plaintiff must allege: (1) the existence of a formal

policy which is officially endorsed by the municipality, see

Connick, 563 U.S. at 60-61; (2) actions taken or decisions made by

municipal policymaking officials, i.e., officials with final

23

decisionmaking authority, which caused the alleged violation of

the plaintiff’s civil rights, see Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 126 (2d Cir. 2004); Jeffes v. Barnes, 208

F.3d 49, 57 (2d Cir. 2000); (3) a practice “so persistent and

widespread as to practically have the force of law,” Connick, 563

U. S. at 61; see also Green v. City of N.Y., 465 F.3d 65, 80 (2d

Cir. 2006), or that “was so manifest as to imply the constructive

acquiescence of senior policy-making officials,” Patterson v. Cty.

of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (internal

quotation marks and citations omitted); or (4) that “a policymaking

official exhibit[ed] deliberate indifference to constitutional

deprivations caused by subordinates.” Cash, 654 F.3d at 334

(internal quotation marks and citations omitted); see also Okin v.

Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 439 (2d

Cir. 2009) (A municipal custom may be found when “‘faced with a

pattern of misconduct, [the municipality] does nothing, compelling

the conclusion that [it] has acquiesced in or tacitly authorized

its subordinates’ unlawful actions.’”) (quoting Reynolds v.

Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (second alteration in

original)).

Here, even affording the pro se Complaints a liberal

construction, there are no factual allegations from which the Court

24

could reasonably construe a plausible Section 1983 cause of action

against Nassau County. Accordingly, the Complaints do not allege

a plausible Section 1983 claim against Nassau County.

IV. 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. Because the defects in Plaintiff’s

claims against Nassau County Legal Aide Society, Taranto,

Menoudakos, Judge Lerose, DiMaggio, Gravin, and Pecca are

substantive and would not be cured if afforded an opportunity to

amend, leave to amend the Complaint against these Defendants is

DENIED. However, 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 the County of Nassau, any individual

Nassau County police officers and/or any other proper Defendant.

If Plaintiff does not know the names of the individuals he seeks

to hold liable, he may name them as “John Doe” or “Jane Doe” in

the Amended Complaint and include sufficient factual information

concerning these individual(s) such that their identities may be

ascertained.

25

Any Amended Complaint shall be clearly labeled “Amended

Complaint”, shall bear only the docket number of this Consolidated

Action, 18-CV-6010(JS)(AKT), and shall be filed within thirty (30)

days from the date of this Order. 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, should he elect to

file an Amended Complaint.

CONCLUSION

For the reasons set forth above, Plaintiff’s

applications to proceed in forma pauperis are GRANTED, and the

Complaints are CONSOLIDATED under Docket Number 18-CV-

6010(JS)(AKT). The Clerk of Court is DIRECTED to: (1) consolidate

these actions; and (2) mark the cases assigned Docket Numbers 19-

CV-2941, 19-CV-2942, 19-CV-2943 CLOSED. Any future filings are

to be docketed in only 19-CV-6010(JS)(AKT).

Plaintiff’s claims against Legal Aide, Nassau County

Correctional Services Department, Nassau County Probation

Department, Taranto, Menoudakos, Judge Lerose, DiMaggio, Gravin,

Devane, and Pecca are DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b). Plaintiff’s claims against Dr. Henning,

RN Sandra Jones, Sgt. Cunningham, C.O. Byzente, and Cpl. Lanning

26

shall proceed and the Clerk of the Court shall issue summonses to

these Defendants and such summonses SHALL BE FORWARDED to the

United States Marshal service together with copies of Plaintiff’s

consolidated Complaints for service upon these individuals

forthwith.

Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT

in accordance with this Order against the County of Nassau and/or

any other proper Defendant. Any Amended Complaint shall be

clearly labeled “Amended Complaint”, shall bear the only Docket

Number of this Consolidated Action, 18-CV-6010(JS)(AKT), and shall

be filed within thirty (30) days from the date of this Order.

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, should he elect to file an Amended Complaint.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

27

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 directed to mail a copy of

this Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: October 21 , 2019

Central Islip, New York

28