# Jessup v. Nassau County Corr. Fac.

> District Court, E.D. New York · May 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10304229

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304229

## How later opinions describe it (automated extraction)

- noting that under §§ 1915, 1915A, sua sponte dismissals of frivolous prisoner complaints are not only permitted but mandatory

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
COREY JESSUP,

Plaintiff,
MEMORANDUM AND ORDER
-against- 20-CV-1113(JS)(AKT)

NASSAU COUNTY CORRECTIONAL
FACILITY: MEDICAL,

Defendants.
----------------------------------X
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.
2
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.
3
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
4
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
5
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,
6
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
7
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304229. Public record. Not legal advice.