Taylor v. Fludd

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DAMON TAYLOR,

Plaintiff,

MEMORANDUM AND ORDER

-against- 19-CV-5127(JS)(GRB)

VERA FLUDD, Sheriff and NASSAU

COUNTY CORRECTIONAL CENTER,

Defendants.

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APPEARANCES

For Plaintiff: Damon Taylor, pro se

1900-3514

Nassau County Correctional Center

100 Carman Avenue

East Meadow, New York 11554

For Defendants: No appearances.

SEYBERT, District Judge:

On September 6, 2019, incarcerated pro se plaintiff

Damon Taylor (“Plaintiff”) filed a Complaint in this Court pursuant

to 42 U.S.C. § 1983 (“Section 1983”) against Nassau County Sheriff

Vera Fludd (“Sheriff Fludd”), and the Nassau County Correctional

Center (the “Jail” and together, “Defendants”). Plaintiff filed

an application to proceed in forma pauperis with the Complaint.

(See IFP Mot., D.E. 2.)

Upon review of the declaration in support of the

application to proceed in forma pauperis, the Court GRANTS

Plaintiff’s request to proceed in forma pauperis. However, for

the reasons that follow, the Complaint is sua sponte DISMISSED

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

BACKGROUND1

Plaintiff’s brief handwritten Complaint is submitted on

the Court’s Section 1983 complaint form. In its entirety,

Plaintiff alleges that:2

Camera(s) was placed in “strip search” area of

the visiting room here at the Nassau County

Correctional Center on or about June 12th,

2019. These camera(s) viewed and possibly

recorder Petitioner naked during the “strip

search” process once Petitioner completed his

visits(s) on the following date(s): June 13th,

June 17th, June 18th, June 20th, June 24th,

July 1st, and July 3rd, all of these date(s)

are of the year 2019.

(Compl. ¶ III.) In the space on the form Complaint that calls for

a description of any claimed injuries, Plaintiff alleges that “[n]o

physical injuries are being claimed” but he “has suffered from

mental and emotional duress due to these violations of his human

and civil rights.” (Compl. ¶ IV.A.) As a result of the foregoing,

Plaintiff seeks to recover an unspecified sum of “monetary damages

and any other relief that this Court may deem just and proper.”

1 All material allegations in the 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 Complaint are reproduced here exactly as they

appear in the original. Errors in spelling, punctuation, and

grammar have not been corrected or noted.

(Compl. at 6.)

DISCUSSION

I. In Forma Pauperis Application

Upon review of Plaintiff’s declaration 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. See 28 U.S.C. § 1915(a)(1). Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.

II. 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

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); Liner v. Goord,

196 F.3d 132, 134 & n.1 (2d Cir. 1999) (noting that under §§ 1915,

1915A, sua sponte dismissals of frivolous prisoner complaints are

not only permitted but mandatory).

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, 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).

III. 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. Cnty. 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

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). The Supreme Court held in Iqbal that “[b]ecause

vicarious liability is inapplicable to . . . [section] 1983 suits,

a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the

Constitution.” Iqbal, 556 U.S. at 676, 129 S. Ct. at 1948. 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).

Here, although Plaintiff names Sheriff Fludd as a

defendant in the caption of the Complaint, she is not again

mentioned in the body of the Complaint. Wholly absent are any

factual allegations of conduct or inaction attributable to Sheriff

Fludd. Because the 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

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.” Davis v.

Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002);

see also Hawkins v. Nassau Cty. Corr. Fac., 781 F. Supp. 2d 107,

109 at n.1 (E.D.N.Y. 2011) (dismissing claims against Nassau County

Jail because it is an “administrative arm[ ] . . . of the County

of Nassau, and thus lacks the capacity to be sued as a separate

entity”) (internal quotation marks and citations omitted). Thus,

Plaintiff’s Section 1983 claims against the Jail are not plausible

and are DISMISSED pursuant to 28 U.S.C. §§ 1915(e) (2)(b)(ii);

1915A(b).

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 finds that he has not for the

reasons that follow.

1. Claims as Construed Against Nassau County

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

policy which is officially endorsed by the municipality, see

Connick, 131 S. Ct. at 1359; (2) actions taken or decisions made

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

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, 131

S. Ct. at 1359; 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 Complaint a liberal

construction, there are no factual allegations from which the Court

could reasonably construe a plausible Section 1983 cause of action

against Nassau County. Accordingly, even as construed against

Nassau County, the Complaint does not allege a plausible Section

1983 claim.

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. As set forth above, a plausible

Section 1983 claim requires that the challenged “conduct deprived

the plaintiff of a right guaranteed under the Constitution of the

United States.” (See supra at 4, citing Rae, 2010 WL 768720, at

*4 (additional citation omitted)). Here, Plaintiff complains that

he was subjected to strip searches, which were viewed on camera

and “possibly recorded”, after visitation on eight occasions

during June and July 2019. (Compl. ¶ III.) “Strip searches do

not violate the Fourth Amendment if they are performed pursuant to

policies that are ‘reasonably related to legitimate penological

interests.’” Lopez v. Phipps, 18-CV-3605, 2019 WL 2504097, at *4

(E.D.N.Y. June 17, 2019) (quoting Florence v. Bd. of Chosen

Freeholders of Cty. of Burlington, 566 U.S. 318, 326, 132 S. Ct.

1510, 1515, 182 L. Ed. 2d 566 (2012)). A strip search is

unconstitutional under the Fourth Amendment “if it is unrelated to

any legitimate penological goal or if it is designed to intimidate,

harass, or punish.” Holland v. City of N.Y., 197 F. Supp. 3d 529,

542–43 (S.D.N.Y. 2016) (internal quotations and citation omitted).

Plaintiff’s sparse allegations do not include any facts

sufficient to show that the strip searches at issue were not

legitimately related to penological interests or were designed to

harass or punish him. He simply asserts that the searches were

conducted in view of cameras and were “possibly recorded.”

(Compl. ¶ III.) “[N]either the presence of cameras nor the

presence of other inmates and employees of a correctional facility

makes an otherwise constitutional strip search unconstitutional.”

Smith v. City of N.Y., 14-CV-5934, 2015 WL 3929621, at *2 (S.D.N.Y.

June 17, 2015); see also Walker v. Ponte, 14-CV-8507, 2016 WL

4411415, at *4 (S.D.N.Y. Aug. 18, 2016) (“That the strip searches

were carried out in front of cameras and other inmates does not

counter [the legitimate security interest of discovering

contraband].”) (citations omitted); Peek v. City of N.Y., 13-CV-

4488, 2014 WL 4160229, at *2 (S.D.N.Y. Aug. 18, 2014) (upholding

the constitutionality of the use of a camera during a strip search

procedure).

Because the defect in Plaintiff’s claim against the Jail

is substantive and would not be cured if afforded an opportunity

to amend, leave to amend the Complaint against the Jail and the

Jail Departments 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 municipality,

Nassau County, and/or any other Defendants in accordance with the

guidance set forth above. Any Amended Complaint shall be clearly

labeled “Amended Complaint”, shall bear the same docket number as

this Order, 19-CV-5127(JS)(GRB), 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. If

Plaintiff does not file an Amended Complaint within the time

allowed, judgment shall enter without further notice.

CONCLUSION

For the reasons set forth above, Plaintiff’s application

to proceed in forma pauperis is GRANTED, however Plaintiff’s claims

against the Jail are sua sponte DISMISSED WITH PREJUDICE pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A (b)(1) and Plaintiff’s

claims against Sheriff Fludd are sua sponte DISMISSED WITHOUT

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

(b)(1). Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT

WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS ORDER. Any Amended

Complaint shall be clearly labeled “Amended Complaint”, and shall

bear the same docket number as this Order, 19-CV-5127(JS)(GRB).

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. If Plaintiff does not file an Amended

Complaint within the time allowed, judgment shall enter without

further notice.

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 Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______

JOANNA SEYBERT, U.S.D.J.

Dated: January 9 , 2020

Central Islip, New York