London v. Nassau County Correctional Facility

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LENNOX M. LONDON,

Plaintiff,

MEMORANDUM AND ORDER

-against- 20-CV-01991(JS)(AKT)

NASSAU COUNTY CORRECTIONAL FACILITY,

MEDICAL UNIT, Nassau County

Correctional Facility, SHERIFF’S

DEPARTMENT COUNTY OF NASSAU &

OFFICERS, SHERIFF DZURENDA, and

DONNA L. HENIG, M.D.,

Defendants.

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APPEARANCES

For Plaintiff: Lennox M. London, pro se

1505154

Nassau County Correctional Center

100 Carman Avenue

East Meadow, New York 11554-1146

For Defendants: No appearances.

SEYBERT, District Judge:

On April 27, 2020, incarcerated pro se plaintiff Lennox

M. London (“Plaintiff”) filed a Complaint in this Court pursuant

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

Correctional Center (improperly named as the “Nassau County

Correctional Facility” (“the Jail”); the Jail’s “Medical Unit”

(the “Medial Unit”); the Sheriff’s Department of Nassau County

(the “Sheriff’s Department”) and its “Officers”; Sheriff Dzurenda;

and Donna L. Hennig, M.D. (“Dr. Hennig” and collectively,

“Defendants”) together with an application to proceed in forma

pauperis. (See Compl., D.E. 1, IFP Mot., D.E. 2.) However,

Plaintiff did not file the required Prisoner Litigation

Authorization form (“PLRA”). Accordingly, by Notice of Deficiency

dated May 14, 2020, Plaintiff was instructed to complete and return

the enclosed PLRA within fourteen (14) days. (See D.E. 6.) On

May 21, 2020, Plaintiff timely filed the PLRA. (See PLRA, D.E.

7.) On May 26, 2020, Plaintiff filed a two-page letter supplement

to his Complaint. (Ltr., D.E. 8.)

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 following reasons, the Complaint is sua sponte DISMISSED WITH

PREJUDICE as against the Jail, the Medical Unit, and the Sheriff’s

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

1915A(b)(1). Plaintiff’s claims against Sheriff Dzurenda and Dr.

Hennig shall proceed.1

BACKGROUND2

1 Insofar as Plaintiff seeks to impose liability against the

unidentified “Officers”, the sparse allegations generally

against these individuals do not allege a plausible claim for

relief. See FED. R. CIV. P. 8; see also 28 U.S.C. §§ 1915(e)(2)

(B)(ii), 1915A(b)(1). Should Plaintiff learn the identities of

any individual officers during the course of discovery, he may

seek to leave to amend his Complaint at such time.

2 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

Plaintiff’s handwritten Complaint is submitted on the

Court’s Section 1983 complaint form and generally complains about

the Jail’s protocol with respect to the COVID-19 virus.3 More

specifically, Plaintiff alleges that Sheriff Dzurenda, Dr. Hennig,

and the Officers came into his unit and distributed a “memo telling

us we don’t need any COVID-19 tests. We don’t need to be tested

cause we are safe.” (Compl. ¶ II at 4.) Plaintiff alleges that

Dr. Hennig advised that the inmates and officers that have the

virus “are in other parts of the building downstairs . . . .”

(Compl. ¶ II at 4.) According to the Complaint, Plaintiff told

Dr. Hennig “that new inmates come into our unit from the street

and they are sick, they tested positive for the virus and are here

with us.” (Compl. ¶ II at 4.) Plaintiff also complains that the

corrections officers do not wear masks or gloves, have not provided

any sanitizing supplies, and have not put any social distancing

measures in place. (Compl. ¶ II at 4.) Plaintiff complains that

he is forced to be in close quarters with inmates “who are showing

COVID-19 symptoms”. (Compl. ¶ II at 4.)

In the space on the form complaint that calls for a

description of any claimed injuries, Plaintiff reports that he has

to accept the material allegations in the complaint as true).

3 Excerpts from the Complaint and Supplement are reproduced here

exactly as they appear in the original. Errors in spelling,

punctuation, or grammar have not been corrected or noted.

been diagnosed with tuberculosis and has a weakened immune system

and has not received any medical treatment for his “lung disease”

and “breathing problems” including “shortness of breath, dry

coughing, fever, sneezing, runnie nose and runnie eyes.” (Compl.

¶ II.A.) Plaintiff also claims he is “pre-diabetic” and “they

check my blood all the time” and have also given him a nasal spray

for his “stuffy” nose. (Compl. at 7-8.) Plaintiff also alleges

that he suffers from schizophrenia and bipolar disorder for which

he takes medication twice a day. (Compl. ¶ II.A at 4.) According

to the Complaint, Plaintiff’s “mental health issues got worse

because of fear, stress, worry, anxiety, paranoid, panic,

emotional distress.” (Compl. at 7.)

Annexed to the Complaint is a four-page handwritten

document entitled “Attachment for Facts” wherein Plaintiff

generally complains that the inmates at the Jail are not being

released while “in NYC 1500 inmates was released from City jail”

by Mayor DeBlasio in response to the COVID-19 virus. (Compl. at

5.) Plaintiff also alleges that although Sheriff Dzurenda’s memo

says that two full-time cleaning crews are working around the clock

and are using “CDC approved disinfectant that kills the virus”,

Plaintiff claims no one has cleaned his unit. (Compl. at 6.)

Finally, Plaintiff filed a Supplemental document

alleging that on April 28, 2020, another inmate housed in close

proximity to Plaintiff tested positive for the COVID-19 virus and

was moved to another location. (D.E. 8, Suppl. Ltr., at 1.) The

following day, the cell and common areas of the Jail where this

inmate had been were disinfected and every inmate there was given

an N95 mask. (Suppl. Ltr. at 1-2.) Plaintiff complains that,

even though an inmate he was exposed to had tested positive to the

COVID-19 virus, he still has not been tested. (Suppl. Ltr. at 2.)

As a result of the foregoing, Plaintiff seeks to recover,

inter alia, a damages award in the sum of $2.5 million dollars.

(Compl. ¶ III.)

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. 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, the Medical Unit, and the

Sheriff’s Department

Plaintiff’s Section 1983 claims against the Jail, the

Medical Unit, and the Sheriff’s Department are not plausible

because these entities do 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,

the Medical Unit, and the Sheriff’s Department are not plausible

and are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.

§§ 1915(e)(2)(b)(ii); 1915A(b).

B. Section 1983 Claims Against Sheriff Dzurenda and

Dr. Hennig

Though thin, the Court declines to sua sponte dismiss

Plaintiff’s Section 1983 claims alleged against Sheriff Dzurenda

and Dr. Hennig at this early stage of the proceedings.

Accordingly, such claims shall proceed. Given the national

emergency caused by the COVID-19 virus, the Court requests that

the Nassau County Attorney accept service of the summonses and

Complaint on behalf of Sheriff Dzurenda and Dr. Hennig in lieu of

personal service by the United States Marshal Service.

Accordingly, the Court requests that the Clerk of the Court issue

summonses for Sheriff Dzurenda and Dr. Hennig and to mail them

together with copies of the Complaint to the Nassau County

Attorney.

CONCLUSION

For the reasons set forth above, Plaintiff’s application

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

against the Jail, the Medical Unit, and the Sheriff’s Department

are sua sponte DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§

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

1983 claims against Sheriff Dzurenda and Dr. Hennig shall proceed.

The Court requests that the Nassau County Attorney accept service

of the summonses and Complaint on behalf of Sheriff Dzurenda and

Dr. Hennig in lieu of personal service by the United States Marshal

Service. Accordingly, the Court requests that the Clerk of the

Court issue summonses for Sheriff Dzurenda and Dr. Hennig and mail

them the copies of the Complaint and the summonses to the Nassau

County Attorney.

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: August 27 , 2020

Central Islip, New York