Griffin v. Ms Fludd

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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K-MEL T. GRIFFIN,

Plaintiff,

MEMORANDUM AND ORDER

-against- 19-CV-0107(JS)(SIL)

OFFICER BLUM #3177, MS. FLUDD,

NASSAU COUNTY CORRECTIONAL CENTER,

Defendants.

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APPEARANCES

For Plaintiff: K-Mel T. Griffin, pro se

19-A-1468

Washington Correctional Facility

72 Lock 11 Lane

P.O. Box 180

Comstock, New York 12821-0180

For Defendants: No appearances.

SEYBERT, District Judge:

By Memorandum and Order dated July 18, 2019 (the “M&O”),

the Court granted the application of incarcerated pro se plaintiff

K-Mel T. Griffin (“Plaintiff”) to proceed in forma pauperis and

dismissed his Complaint filed in this Court pursuant to 42 U.S.C.

§ 1983 (“Section 1983”) against Nassau County Sheriff Vera Fludd

(“Sheriff Fludd”), the Nassau County Correctional Center (the

“Jail”), the “Medical Department” and “Prisoner Holding Center” at

the Jail (“Jail Departments”), and “Inmates (E1E) Sate[l]lite”

(“Inmates”). (See M&O, D.E. 10.) Plaintiff was granted leave to

file an Amended Complaint in accordance with the M&O within thirty

(30) days from the date of the M&O. Plaintiff requested an

extension of time to file an Amended Complaint and that application

was granted. (See D.E. 13; and Aug. 16, 2019 Elec. Order.) On

September 13, 2019, Plaintiff timely filed an Amended Complaint

pursuant to Section 1983 against Officer Blum #3177 (“C.O. Blum”),

Sheriff Fludd, and the Jail. For the reasons that follow, the

Amended Complaint does not allege a plausible claim for relief and

is thus DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),

1915A(b)(1).

THE AMENDED COMPLAINT1

The Amended Complaint is submitted on a form from the

United States District Court for the Northern District of Illinois,

Western Division, and alleges that Plaintiff’s claims are brought

pursuant to the Civil Rights Act, 42 U.S.C. § 1983. (Am. Compl.,

D.E. 14.) The facts alleged in Plaintiff’s Statement of Claim are

nearly identical to those alleged in the original Complaint. In

its entirety, the Amended Complaint alleges:2

On December 11, 2018, a fight had broke out in

which I ended up getting stabbed numerous

times. Correctional Officer Blum, Badge

number 3177 was in the dorm area when it

1 All material allegations in the Amended Complaint are presumed

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 in the complaint

as true).

2 Excerpts from the Amended Complaint are reproduced here exactly

as they appear in the original. Errors in spelling,

punctuation, and grammar have not been corrected or noted.

occurred and failed to break it up or use his

state issued mace to stop my assailants.

Nassau County Medical left me in my cell

bleeding for 6 and a half hours without any

medical attention and left me with open wounds

bleeding without any proper stitches.

Failing to break up altercation as it was

happening. Failed at care, custody and

control.

Officer Blum Badge # 3177 failed to get me

medical attention as soon as possible after I

got stabbed.

Nassau County failed to put keep separates on

all parties after the incident. I seen the

person who stabbed me plenty of times after.

(Am. Compl. ¶ IV.) Plaintiff does not seek any relief and has

left blank the space on the form Complaint that calls for a

statement of “exactly what you want the court to do for you.”

(Am. Compl. ¶ V.)

DISCUSSION

I. Application of 28 U.S.C. § 1915

Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint or amended 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 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. See id. § 1915A(b).

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 or amended complant

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, 1949, 173 L. Ed. 2d 868

(2009) (citation 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).

II. 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 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. To state a claim under Section 1983, a plaintiff

must “allege that (1) the challenged conduct was attributable at

least in part to a person 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, No.

07–CV–2138, 2010 WL 768720, at *4 (E.D.N.Y. Mar. 5, 2010) (quoting

Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

A. Claims Against Sheriff Fludd

As the Court made clear in the M&O, “[i]n 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).” (See M&O at 6.) “A

complaint based upon a violation under Section 1983 that does not

allege the personal involvement of a defendant fails as a matter

of law and should be dismissed. Johnson v. Barney, 360 F. App’x

199, 201 (2d Cir. 2010).” (See M&O at 6.)

Here, like the original Complaint, although Plaintiff

names Sheriff Fludd as a Defendant in the caption of the Amended

Complaint, she is not again mentioned in the body of the Amended

Complaint. Wholly absent are any factual allegations of conduct

or inaction attributable to Sheriff Fludd. Because the Amended

Complaint, like the original Complaint, is devoid of any

allegations sufficient to establish any personal involvement by

Sheriff Fludd in the conduct of which Plaintiff complains,

Plaintiff’s Section 1983 claims against Sheriff Fludd are not

plausible and are thus DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b).

B. Claims Against the Jail

Notwithstanding the fact the Plaintiff’s claims against

the Jail were dismissed with prejudice (see M&O at 7) and the Court

did not grant Plaintiff leave to amend his claims against the Jail

(see M&O at 10), Plaintiff continues to name the Jail as a

Defendant. Accordingly, for the same reasons set forth in the

M&O, Plaintiff’s Section 1983 claims against the Jail are not

plausible and are thus DISMISSED WITH PREJUDICE pursuant to 28

U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b). (See M&O at 7, citing

Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y.

2002) (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.”).3

3 Nor has Plaintiff followed the guidance set forth in the M&O

(at 7-9) with regard to the requirements of a plausible Section

1983 claim against the municipality, Nassau County. Wholly

absent from Amended Complaint are any factual allegations from

which the Court could reasonably construe a plausible Section

1983 cause of action against Nassau County.

C. Claims Against C.O. Blum

Federal Rule of Civil Procedure 8 provides, in relevant

part, that a pleading must contain “a demand for the relief sought,

which may include relief in the alternative or different types of

relief.” FED. R. CIV. P. 8(a)(3). When a complaint or amended

complaint fails to satisfy the Rule 8 pleading standard, including

a demand for relief, a district court may dismiss it sua sponte.

France v. Nassau Cnty. Jail, No. 14-CV-2547, 2014 WL 1871937, *5

(E.D.N.Y. May 6, 2014) (dismissing pro se complaint that, inter

alia, did not seek any relief); see also Rodriguez v. Nassau Cnty.

Police Dept., No. 18-CV-00203, 2018 WL 2725421, *4 (E.D.N.Y. June

6, 2018) (sua sponte dismissal of pro se complaint that did not

seek any relief as is required by Federal Rule of Civil Procedure

8(a)(3)). Accordingly, in the absence of a demand for any relief

against C.O. Blum, Plaintiff has not complied with Rule 8’s

requirements. Given that Plaintiff has not alleged a plausible

claim for relief, his claims against C.O. Blum are DISMISSED

WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii);

1915A(b).

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 further amend is warranted here. In an abundance of caution

and given Plaintiff’s pro se status, Plaintiff is GRANTED LEAVE TO

FILE A SECOND AMENDED COMPLAINT IN ACCORDANCE WITH THIS ORDER AND

THE M&O. Plaintiff is advised that the Second Amended Complaint

will completely replace his prior pleadings. Therefore, Plaintiff

must include any and all claims against any Defendant(s) he seeks

to pursue in the Amended Complaint. However, Plaintiff may not

include claims against the Jail in any further pleadings given

that the Jail lacks the capacity to be sued and his claims against

the Jail have already been dismissed with prejudice. (See supra

at 6, see M&O at 7.) The Second Amended Complaint must clearly

be labeled “Second Amended Complaint”, shall bear the same docket

number as this Order, 19-CV-00107(JS)(SIL), and shall be filed

within thirty (30) days from the date of this Order. If Plaintiff

does not file a Second Amended Complaint within the time allowed,

judgment shall enter without further notice.

Plaintiff is further advised that, to state a claim for

deliberate indifference to a serious medical need, a plaintiff

must show both that his medical need was serious and that the

defendants acted with a sufficiently culpable state of mind.

Although Plaintiff did not indicate in the Complaint or Amended

Complaint whether he is a sentenced prisoner or a pretrial detainee

at the time of the incidents alleged, Plaintiff should include

such information because his deliberate indifference claims would

arise under the Fourteenth Amendment due process clause if he is

a pretrial detainee, and the Eighth Amendment if he is a convicted

prisoner. However, either way, prison officials who act with mere

negligence will not be held liable for constitutional violations

because “any § 1983 claim for a violation of due process requires

proof of a mens rea greater than mere negligence.” Darnell v

Pineiro, 849 F.3d 17, 33, 36 (2d Cir. 2017); see also Grimmett v.

Corizon Med. Assocs. of N.Y., No. 15-CV-7351, 2017 WL 2274485, at

*4 (S.D.N.Y. May 24, 2017) (holding that more than negligence is

required to hold a defendant liable for violating either the Eighth

or Fourteenth Amendment) (citing Darnell, 849 F.3d at 36).

Negligence that would support a claim for medical

malpractice does not rise to the level of deliberate indifference

and is not cognizable under section 1983; see Salahuddin v. Goord,

467 F.3d 263, 280 (2d Cir. 2006); nor does a difference of opinion

regarding what constitutes an appropriate response and treatment.

Ventura v. Sinha, 379 F. App’x 1, 2–3 (2d Cir. 2010).

Accordingly, rather than file a Second Amended Complaint in this

Court, Plaintiff may elect to pursue any valid claims, including

medical malpractice and/or negligence, in state court.

CONCLUSION

For the reasons set forth above, Plaintiff’s Amended

Complaint is sua sponte DISMISSED WITH PREJUDICE as against the

Jail for failure to state a claim pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii), 1915A (b)(1). Plaintiff’s Section 1983

claims against Sheriff Fludd and C.O. Blum are not plausible and

are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(b)(ii); 1915A(b).

Plaintiff is GRANTED leave to file a Second Amended

Complaint in order to allege any valid claims he may have against

any Defendant(s) other than the Jail in accordance with the

guidance set forth above and in the M&O. The Second Amended

Complaint shall be clearly labeled “Second Amended Complaint”,

shall bear the same docket number as this Order, 19-CV-

00107(JS)(SIL), and shall be filed within thirty (30) days from

the date of this Order.

Alternatively, rather than file a Second Amended

Complaint in this Court, Plaintiff may elect to pursue any valid

claims, including medical malpractice and/or negligence, in state

court.

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 Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______

JOANNA SEYBERT, U.S.D.J.

Dated: January 9 , 2020

Central Islip, New York