# Dennis v. Nassau County

> District Court, E.D. New York · September 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10304748

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
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.
-----------------------------------X
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

3
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304748. Public record. Not legal advice.