Jessup v. Nassau County Corr. Fac.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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COREY JESSUP,

Plaintiff,

MEMORANDUM AND ORDER

-against- 20-CV-1113(JS)(AKT)

NASSAU COUNTY CORRECTIONAL

FACILITY: MEDICAL,

Defendants.

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APPEARANCES

For Plaintiff: Corey Jessup, pro se

2019006968

Nassau County Correctional Center

100 Carman Avenue

East Meadow, New York 11554

For Defendants: No appearances.

SEYBERT, District Judge:

By Memorandum and Order dated April 21, 2020 (“M&O,”

D.E. 9), the Court denied the application to proceed in forma

pauperis of incarcerated pro se plaintiff Corey Jessup

(“Plaintiff”) without prejudice and with leave to renew upon

completion of the AO 239 Long Form in forma pauperis application

(“Long Form”) within thirty (30) days from the date of the M&O.

On May 6, 2020, Plaintiff timely filed the Long Form in forma

pauperis application. (IFP, D.E. 11.) Upon review, the Court

finds that Plaintiff is qualified by his financial status to

commence this action without prepayment of the filing fees.

Accordingly, the application to proceed in forma pauperis is

GRANTED. However, for the reasons that follow, the Complaint is

DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii), 1915A(b) and with leave to file an Amended

Complaint against a proper defendant in accordance with this Order.

BACKGROUND1

On February 24, 2020, Plaintiff filed a Complaint in

this Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against

the Nassau County Correctional Center: Medical (“the Jail” or

“Defendant”). (Compl., D.E. 1.) On March 4, 2020, Plaintiff

filed another copy of the Complaint. (Compl., D.E. 8.)

Plaintiff’s handwritten Complaints are submitted on the Court’s

Section 1983 complaint form and are largely the same. (See

Compls., D.E. 1, 8.) Plaintiff generally complains about the

conditions of his confinement at the Jail as well as the adequacy

of the medical treatment provided to him. In its entirety,

Plaintiff’s Statement of Claim alleges:2

In E2-1 housing unit where mold is in the shower, lead

paid is chip throughout the unit, fungous in my cell

that on the vents. This is an on-going matter from the

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 Complaints are reproduced here exactly as

they appear in the original. Errors in spelling, grammar &

punctuation have not been corrected or noted.

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day I arrived on E2-a, Dec. 31st 2019. Bacteria, chip

lead paint, fungous & mold is what I inhale everyday an

night from the vent in my cell to the walls in the shower

where top floor showers leak to bottom shower when in

use. Mop bucket in middle of dorm floor to catch rain

when it rain. Where is the Nassau County Officer’s sit

in the bubble with a “air purifier” that gives them fresh

air 24/7 were my life is in danger from toxic effect

that medical, Nassau County Jail & Sheriff as a whole

were they are not fulfilling there obligation to “keep

me and my health safe” while in there care, custody, &

control.

(Compls. at 3-4.) In the space on the form that calls for a

description of any injuries, Plaintiff wrote:

Inadequate health care, neglect the request of my sick

call when I ask for another “full body examination” from

my arrival. Now I suffer with bumps under both arm

pits, on my buttocks, skin peeling & bumps on the inside

of buttock, nuts [indecipherable] treatment: cream.

(Compls. ¶ II.A, at 4.) As a result of the foregoing, Plaintiff

seeks to recover a damages award in the sum of one million dollars.

Plaintiff also seeks an unspecified sum to pay for his medical

bills. (Compls. ¶ III.)

DISCUSSION

I. In Forma Pauperis Application

Upon review of Plaintiff’s Long Form in forma pauperis

application, 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.

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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

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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. 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 the Jail

Plaintiff names the Jail as the sole Defendant.

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

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because it does not have an independent legal identity. 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); Lukes v. Nassau Cty. Jail, 2012

WL 1965663, *2 (E.D.N.Y. May 29, 2012) (dismissing claims against

the Nassau County Jail because it is an “administrative arm of

Nassau County, without a legal identity separate and apart from

the County”); Hawkins v. Nassau Cty. Corr. Facility, 781 F. Supp.

2d 107, 109 at n. 1 (E.D.N.Y. 2011).

Thus, Plaintiff’s Section 1983 claims against the Jail

are not plausible and are DISMISSED WITH PREJUDICE pursuant to 28

U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b). Given Plaintiff’s pro se

status, the Court has considered whether the Complaint alleges a

plausible claim when construed as against the municipality, Nassau

County. For the reasons that follow, the Court finds that he has

not.

B. Claims as construed against Nassau County

It is well-established that a municipality cannot be

held liable under § 1983 on a respondeat superior theory. See

Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 691, 98 S.

Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Roe v. City of Waterbury,

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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, 131 S. Ct. 1350, 1359,

179 L. Ed. 2d 417 (2011)); see also Monell, 436 U.S. at 690B91.

“[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 690-691

(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

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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, Plaintiff fails to plead any factual allegations

from which the Court may infer that the conduct of which Plaintiff

complains of was caused by a policy or custom of Nassau County.

Accordingly, even when construed as against Nassau County, the

Complaint does not allege a plausible Section 1983 claim.

C. Leave To Amend

A pro se plaintiff should ordinarily be 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 N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal

quotation marks and citation omitted). If Plaintiff wishes to

bring a claim against a Defendant and he does not know the name of

the individual, he may identify each of them as John or Jane Doe,

and to the best of his ability describe each individual including

his or her title and the place of employment. Further, for each

Defendant named, Plaintiff should include a brief description of

what each Defendant did or failed to do, and how those acts or

omissions caused Plaintiff injury.

Plaintiff’s Amended Complaint must be labeled as an

“Amended Complaint,” bear the same docket number as this Order,

20-CV-1113, and must be filed within sixty (60) days from the date

of this Order. Plaintiff is advised that an Amended Complaint

completely replaces the previous Complaints. Therefore, Plaintiff

must include all allegations he wishes to pursue against any

Defendant(s) in the Amended Complaint. If Plaintiff does not file

an Amended Complaint within the time allowed, judgement shall enter

without further notice and this case will be marked CLOSED.

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).

Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT

in accordance with this Order. The Amended Complaint must be

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

this Order, 20-CV-1113, and must be filed within sixty (60) days

from the date of this Order. Plaintiff is advised that an Amended

Complaint completely replaces the previous Complaints. Therefore,

Plaintiff must include all allegations he wishes to pursue against

any Defendant(s) in the Amended Complaint. If Plaintiff does not

file an Amended Complaint within the time allowed, judgement shall

enter without further notice and this case will be marked CLOSED.

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 at his last known address.

SO ORDERED.

/s/ JOANNA SEYBERT

JOANNA SEYBERT, U.S.D.J.

Dated: May 15 , 2020

Central Islip, New York