Dennis v. Nassau County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANDRE DENNIS,

Plaintiff, MEMORANDUM AND ORDER

19-CV-4041 (KAM)(LB)

-against-

NASSAU COUNTY; SHERIFF VERA FLUDD;

JOHN DOE 1; JANE DOE 1; JOHN DOE 2;

JOHN DOE 3; JOHN DOE 4; JOHN DOE 5;

JOHN DOE 6,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On July 12, 2019, pro se plaintiff Andre Dennis, who

is presently incarcerated at the Nassau County Correctional

Center (“NCCC”) filed this action pursuant to 42 U.S.C. § 1983

(“Section 1983”). By Memorandum and Order dated June 1, 2020,

the court granted Plaintiff’s request to proceed in forma

pauperis and dismissed the complaint for failure to state a

claim upon which relief may be granted. See Dennis v. Nassau

County Correctional Ctr., No. 19-CV-4041(KAM), 2020 WL 2836769,

at *2 (E.D.N.Y. June 1, 2020). Plaintiff was, however, granted

30 days’ leave from the date of the order to amend his complaint

to name proper parties.

By order dated July 23, 2020, the court granted

Plaintiff additional time, until August 24, 2020, to file an

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amended complaint. Plaintiff was advised that if the court did

not receive an amended complaint by August 24, 2020, the case

would be closed for the reasons set forth in the court's prior

order. On August 31, 2020, the court dismissed the action as

Plaintiff appeared to have failed to file an amended complaint

and, on September 1, 2020, judgment in favor of Defendants and

against Plaintiff was entered. Thereafter, the court learned

that due to an oversight, Plaintiff’s amended complaint was

received by the Court on August 24, 2020, but was not docketed

until September 2, 2020. Accordingly, the court’s order dated

August 31, 2020 and the judgment entered September 1, 2020 are

hereby vacated pursuant to Federal Rule of Civil Procedure

60(a). Fed. R. Civ. P. 60(a).

For the reasons discussed below, Plaintiff’s claims

asserted in the amended complaint against Nassau County and Vera

Fludd, the Sheriff of Nassau County are dismissed for failure to

state a claim. 28 U.S.C. §1915A(b)(1). Plaintiff’s claims

against the John Doe Correctional Officers will proceed, once

those individuals are identified.

Background

The court assumes the truth of the allegations in the

amended complaint in this Memorandum and Order. Liberally

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construed, Plaintiff alleges Eighth Amendment violations against

Correctional Officers for failure to protect him from harm and

for delaying Plaintiff’s access to medical care. On September

21, 2018, while held at the NCCC, Plaintiff alleges that he was

attacked by a group of inmates. (ECF No. 10, Am. Compl. at 10.)

Plaintiff asserts that he was stabbed more than 12 times and was

refused medical attention for more than two hours. (Id.)

Plaintiff alleges that the Correctional Officers were not at

their posts and failed to conduct walk-throughs. (Id.)

Plaintiff further alleges that he suffered permanent partial

loss of vision in his right eye, and seeks monetary damages.

Discussion

Title 42 U.S.C. § 1983 provides, in relevant part,

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.

Section 1983 “is not itself a source of substantive

rights, but a method for vindicating federal rights elsewhere

conferred by those parts of the United States Constitution and

federal statutes that it describes.” Baker v. McCollan, 443

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U.S. 137, 144 n. 3 (1979); Thomas v. Roach, 165 F.3d 137, 142

(2d Cir. 1999). In order to state a § 1983 claim, a plaintiff

must allege two essential elements. First, the conduct

challenged must have been “committed by a person acting under

color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d

Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d

Cir. 1994)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 50 (1999) (“[T]he under-color-of-state-law element of §

1983 excludes from its reach merely private conduct, no matter

how discriminatory or wrongful.”) (internal quotation marks and

citation omitted). Second, “the conduct complained of must have

deprived a person of rights, privileges or immunities secured by

the Constitution or laws of the United States.” Id.; see also

Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

a. Plaintiff’s Claims against Nassau County

As in Plaintiff’s original complaint, the claims asserted

in the amended complaint fail to state a claim against Nassau

County for municipal liability. In order to state a Section

1983 claim against a municipality such as Nassau County, a

plaintiff must plead: (1) there was an official municipal policy

or custom; and (2) that policy or custom caused him to be

subjected to a denial of a constitutional right. See Monell v.

Dep't Soc. Servs., 436 U.S. 658, 690-91 (1978). A claim of

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municipal liability requires that plaintiff “make factual

allegations that support a plausible inference that the

constitutional violations took place pursuant to [a municipal

policy or custom].” Missel v. County of Monroe, 351 F. App’x

543, 545 (2d Cir. 2009). An “official policy” may be

implemented through a “policy statement, ordinance, regulation,

or decision” that is officially promulgated by a municipality's

policymakers. Anthony v. City of New York, 339 F.3d 129, 139

(2d Cir. 2003) (quoting Monell, 436 U.S. at 690). A

municipality may not be held liable under § 1983 solely on a

respondeat superior theory. Brown v. City of New York, No. 15-

CV-194, 2016 WL 4446126, at *3 (E.D.N.Y. Aug. 18, 2016).

To the extent that Plaintiff seeks to hold Nassau

County liable for the failure to protect him from the violent

actions of other inmates and for inadequate medical care, he

fails to allege plausible facts to suggest that a municipal

policy or custom caused him to sustain injuries in violation of

his constitutional rights. See Jean v. County of Nassau, No.

14-CV-1322, 2020 WL 1244786, at *13 (E.D.N.Y. Mar. 16, 2020)

(dismissing claims against Nassau County where plaintiff “fails

to offer any evidence of a single policy, practice, or custom

promulgated by Nassau County that could have caused the alleged

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violations of Plaintiff’s constitutional rights”). Accordingly,

Plaintiff’s Section 1983 claim for municipal liability is not

plausible and the claims asserted against Nassau County are

dismissed pursuant to 28 U.S.C. § 1915A(b)(1).

b. Plaintiff’s 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. Ellen, 593 F.3d 233, 249

(2d Cir. 2010). The Supreme Court has held 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. A complaint which is

based upon a violation under Section 1983 and 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); Thomas v. Fitzpatrick, No. 19-CV-6567, 2020

WL 1910049, at *2 (E.D.N.Y. Apr. 20, 2020).

Here, Plaintiff asserts that Sheriff Fludd “was put in

position to make sure all rules and procedures were followed”

(Am. Compl. at 8) (internal quotations and emphasis omitted).

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Plaintiff fails to allege any facts to suggest the personal

involvement by Sheriff Fludd in the conduct of which Plaintiff

complains and appears to be named as a Defendant solely because

of the position that she occupies. See, e.g., Makell v. Fludd,

No. 19-CV-6993, 2020 WL 376588, at *2 (E.D.N.Y. Jan. 23, 2020)

(dismissing claims against Sheriff Fludd because plaintiff

failed to allege facts to show that she was responsible for

plaintiff’s injuries or treatment). Accordingly, Plaintiff’s

claims asserted in the amended complaint against Sheriff Fludd

are dismissed pursuant to 28 U.S.C. § 1915A(b). Because

plaintiff has alleged plausible facts concerning the Defendant

Correctional Officers, the action will proceed as to these

defendants.

Conclusion

Accordingly, it is hereby

ORDERED that Plaintiff’s claims asserted in the

amended complaint, are dismissed against Nassau County and

Sheriff Fludd. No summons shall issue as to these Defendants,

see 28 U.S.C. § 1915A and it is further

ORDERED that in accordance with Valentin v. Dinkins,

121 F.3d 72 (2d. Cir. 1997) (per curiam), the court hereby

requests the Office of the Nassau County Attorney to ascertain

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the full names of the NCCC Correctional Officers, who are

alleged to have been involved in the September 21, 2018,

incident which occurred in the main building at the NCCC between

1:30 p.m. and 2:30 p.m. To aid in identification of the

Correctional Officers, Plaintiff provides the following

descriptions: (a) Plaintiff asserts that John Doe Correctional

Officer No. 1 was assigned to his dorm area, and was a white

male with a full beard, a medium build and approximately five

feet nine inches to six feet in height; (b) Plaintiff asserts

that Jane Doe Correctional Officer No. 1 was a reporting officer

who was a white female, with a thin build, long black hair and

approximately five feet three inches to five feet five inches in

height; (c) Plaintiff asserts that John Doe Correctional Officer

No. 2 was a white male who was assigned to Plaintiff’s dorm area

who was of medium build, clean shaven, bald and approximately

five feet eleven inches in height; (d) Plaintiff asserts that

John Doe Correctional Officer No. 3 was a white male who was

assigned to Plaintiff’s dorm area, was bald, had a beard, was a

bit muscular and approximately five feet nine inches to five

feet eleven inches in height; (e) Plaintiff asserts that John

Doe Correctional Officer No. 4 was a white male who was assigned

to Plaintiff’s dorm area, and had a thin build, a buzz cut and

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is approximately five feet seven inches to five feet eight

inches in height; (f) Plaintiff asserts that John Doe

Correctional Officer No. 5 was a black male who was a reporting

officer and had a medium build with a full beard and is

approximately six feet in height; and (g) Plaintiff asserts that

John Doe Correctional Officer No. 6 was a white male who was

assigned to Plaintiff’s dorm area, and had a very thin build,

wore glasses and was approximately five feet six inches in

height.

The Office of the Nassau County Attorney is directed

to provide the full name of the Jane and/or John Doe Officers.

The Office of the Nassau County Attorney is also requested to

provide the address where these individuals currently can be

served; the government need not undertake to defend or indemnify

these individuals at this juncture, and it is further

ORDERED that the Office of the Nassau County Attorney

is hereby requested to produce the information specified above

regarding the identity of the Jane and/or John Doe defendants

and the address where they can be served to the Court within

forty-five (45) days from the date of this Order; once the

Officers have been identified, Plaintiff’s complaint shall be

deemed amended to reflect the full name of these individuals as

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defendants, summonses shall issue for the Defendants, and the

Court shall direct service on these Defendants.

The action is respectfully referred to Magistrate

Judge Lois Bloom to supervise service of process and pretrial

matters. The Clerk of Court is respectfully directed to mail a

copy of this Order to the pro se plaintiff and to the Office of

the Nassau County Attorney, and to note service on the docket.

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 an appeal. Coppedge v. United States, 369 U.S. 438, 444-45

(1962).

SO ORDERED.

_________/s/________________

KIYO A. MATSUMOTO

United States District Judge

Dated: September 3, 2020

Brooklyn, New York

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