Makell v. Sheriff Ms Vera Fludd

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

JERMAINE MAKELL, :

:

Plaintiff, : MEMORANDUM DECISION

: AND ORDER

- against - :

: 19-cv-6993 (BMC) (JO)

VERA FLUDD, Sheriff of Nassau County Jail, et :

al., :

:

Defendants. :

:

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COGAN, District Judge.

Plaintiff pro se brings this § 1983 action for injuries he received as a result of getting

sprayed in the face with a chemical agent by a correctional officer who was responding to a fight

outside of plaintiff’s prison cell. The Court grants plaintiff’s request to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915. Because plaintiff only pleads facts sufficient to state a

claim against C.O. Sailor, that claim may proceed, but the claims against the remaining

defendants are dismissed. Plaintiff has 20 days from the entry of this order to file an amended

complaint, if he so chooses.

BACKGROUND

Plaintiff pro se is a prisoner in the Nassau County Correctional Center. As alleged in his

complaint, he was lying in bed when two other inmates began fighting outside of his cell. Upon

realizing what was happening, plaintiff stood on his bed and called out that he wished to move.

Two on-duty correctional officers, C.O. Sailor and C.O. Golden, soon arrived on the scene to

break up the fight.

Upon reaching the fight, C.O. Sailor sprayed one of the two brawling inmates in the face

with a chemical agent. At that time, plaintiff claims he was against the wall on the bed in his cell

with his hands up, saying out loud that he has “nothing to do with this.” Nevertheless, according

to plaintiff: “C.O. Sailor looked at me in my eyes wile [sic] my back is on the wall and hands up

away from the fight and feet away and sprayed me in my eyes mouth ear and back.” When

plaintiff turned his head in an attempt to further avoid the spray, he fractured his tooth against the

wall. C.O. Sailor sprayed plaintiff again, causing him to “drop off the bed and hit [his] face and

back and legs on the sink and floor.” Plaintiff believes that C.O. Sailor sprayed him because he

is black.

In addition to the immediate pain and irritation resulting from being sprayed in the eyes,

fracturing his tooth, and falling off the bed, plaintiff also claims that he continues to suffer from

itching and burning in his feet, head trauma, memory problems, vision problems, panic attacks

and anxiety, and now fears and distrusts corrections officers.

He is asserting Eighth and Fourteenth Amendment causes of action against C.O. Sailor,

C.O. Golden, Nassau County Sherriff Vera Fludd, and the medical staff at the Nassau County

Correction Center. As to the Sherriff, plaintiff claims “extreme lack of care, custody and

control.” As to the medical staff, he claims inadequate medical care that left him with permanent

pain and suffering, scars, trauma, and bodily damage. He is seeking $2,000,000 in damages.

DISCUSSION

Pro se complaints are “held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation

omitted). However, they 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), and to “allow[] 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). Although the Court assumes all factual allegations

contained in the complaint to be true, this principle is “inapplicable to legal conclusions.” Id.

Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss an in forma pauperis action if it

determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief

may be granted; or (iii) seeks monetary relief from a defendant who is immune from such

relief.” An action “is frivolous when either: (1) the factual contentions are clearly baseless, such

as when allegations are the product of delusion or fantasy; or (2) the claim is based on an

indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437

(2d Cir. 1998) (internal quotation marks and citation omitted).

A claim alleging deprivation of constitutional rights under 42 U.S.C. § 1983 requires that

a plaintiff demonstrate that the challenged conduct was “committed by a person acting under

color of state law,” and that the conduct “deprived [the plaintiff] of rights, privileges, or

immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d

121, 127 (2d Cir. 2010). Furthermore, a plaintiff must show that each of the named defendants

was personally involved in the wrongdoing or misconduct complained of. See Farrell v. Burke,

449 F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). In

particular, to state a claim for inadequate medical treatment, a plaintiff must allege “acts or

omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (establishing the standard applicable to treatment of

convicted prisoners under the Eighth Amendment); see Wevant v. Okst, 101 F.3d 845, 856 (2d

Cir. 1996) (applying the same standard to pretrial detainees under the Fourteenth Amendment).

“Because vicarious liability is inapplicable to . . . § 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.

Here, plaintiff sufficiently pleads a claim against C.O. Sailor by alleging that, without

provocation, C.O. Sailor went out of his way to deliberately assault plaintiff with a harmful

chemical spray. However, plaintiff fails to allege any facts tending to show that the other listed

defendants engaged in any wrongdoing whatsoever, and certainly not that they violated

plaintiff’s constitutional rights.

Although plaintiff names Sherriff Fludd as a defendant, claiming that she displayed an

“extreme lack of care, custody and control” with regard to the prison staff, he does not set forth

any support for the conclusion that she was responsible for plaintiff’s injuries or treatment.

Indeed, it doesn’t appear plaintiff mentions Sherriff Fludd at all in his substantive allegations.

Likewise for the unnamed medical personnel defendants. Plaintiff merely alleges in a

conclusory manner in the “Relief” portion of the form complaint that he was provided

“inadequate” medical care and was “underserve[ed].” But this is completely insufficient under

federal pleading standards to state a claim for relief, see Iqbal, 556 U.S. at 678; Gamble, 429

U.S. at 106, and so the claims against Sherriff Fludd and the medical staff are all dismissed.

Plaintiff also fails to plead any constitutional claims against C.O. Golden, though he

plays a more prominent role in the complaint than most of the other defendants: he was at the

scene of the incident, helping to break up the fight outside of plaintiff’s cell. And, according to

plaintiff, C.O. Golden told the nurse that he witnessed plaintiff getting sprayed. Still, this is not

nearly enough to support the conclusion that C.O. Golden was “personally involved in the

wrongdoing.” See Farrell, 449 F.3d at 484. Therefore, the claims against C.O. Golden are

dismissed as well.

CONCLUSION

Plaintiffs claims against Sherriff Fludd, C.O. Golden, and the Nassau County

Correctional Center’s medical staff are dismissed. His claims against C.O. Sailor may go

forward. Additionally, in light of plaintiffs pro se status, the Court will permit plaintiff to file

an amended complaint within 20 days from the date of this Order, for the purpose of alleging any

additional facts supporting the conclusion that the dismissed defendants were personally

responsible for violating plaintiff's constitutional rights. The amended complaint must be

labeled “Amended Complaint” and include the index number of this case (19-cv-6993). This

amended complaint will completely replace plaintiffs original complaint.

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 purpose of

an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

USD

Dated: Brooklyn, New York

January 23, 2020