Mowatt v. County of Nassau

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TOREY MOWATT,

Plaintiff,

MEMORANDUM & ORDER

-against- 20-CV-3889(JS)(AKT)

NASSAU COUNTY CORRECTIONAL CENTER,

Defendant.

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TOREY MOWATT,

Plaintiff,

-against- 20-CV-3890(JS)(AKT)

NASSAU COUNTY CORRECTIONAL CENTER,

Defendant.

-----------------------------------X

TOREY MOWATT,

Plaintiff,

-against- 20-CV-3891(JS)(AKT)

NASSAU COUNTY CORRECTIONAL CENTER,

Defendant.

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APPEARANCES

For Plaintiff: Torey Mowatt, pro se

679138

Suffolk County Correctional Facility

110 Center Drive

Riverhead, New York 119011

1 Although Plaintiff filed these Complaints while he was

incarcerated at the Nassau County Correctional Center, he has

since been transferred to the Suffolk County Correctional

Facility. (See Notice of Change of Address filed only in 20-CV-

For Defendant: No appearances.

SEYBERT, District Judge:

Pending before the Court are three in forma pauperis

civil rights Complaints filed by incarcerated pro se plaintiff

Torey Mowatt (“Plaintiff”). Because the Complaints purport to

allege claims of failure-to-protect against the Nassau County

Correctional Center (“Defendant” or “the Jail”) arising from

alleged gang assaults that occurred during Plaintiff’s

incarceration at that facility, the Complaints are CONSOLIDATED

pursuant Federal Rule of Civil Procedure 42. For the reasons

outlined in this Order, Plaintiff’s applications to proceed in

forma pauperis are GRANTED. However, Plaintiff’s claims are

DISMISSSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

Plaintiff is GRANTED LEAVE TO FILE ONE, CONSOLIDATED AMENDED

COMPLAINT.

BACKGROUND

Plaintiff filed three separate Complaints, all dated

August 7, 2020, arising out of three separate incidents that

allegedly occurred while he was housed at the Jail. As described

3890, D.E. 9.) The Clerk of the Court shall update Plaintiff’s

address in each case as a one-time courtesy. Plaintiff is

reminded that, should his address change, he is required to

update his address with the Court.

2

in more detail, below:

The first incident alleged occurred on May 23, 2020, and

Plaintiff’s Complaint related to that incident was filed with the

Court on August 21, 2020 under Case Number 20-CV-3890; it was the

second of the three actions Plaintiff commenced (hereafter,

“Mowatt II”);

The second incident allegedly occurred on May 28, 2020, and

Plaintiff’s Complaint related to that incident was filed with the

Court on August 20, 2020 under Case Number 20-CV-3889; it was the

first case filed with the Court (hereafter, “Mowatt I”); and

The third incident allegedly occurred on July 2 or 3, 2020,

and Plaintiff’s Complaint related to that incident and which

commenced Plaintiff’s third action was filed with the Court on

August 20, 2020 under Case Number 20-cv-3891 (hereafter, “Mowatt

III”).

I. Mowatt II

In Mowatt II, Plaintiff filed an in forma pauperis

Complaint against the Defendant alleging a failure-to-protect

claim arising from an alleged assault by MS-13 gang members on May

23, 2020 at approximately 9:50 a.m. in housing area B-4-A-9. (See

Mowatt II, Compl., D.E., p.1.) 2 According to the Complaint,

2 The Court will use the page numbers assigned by the Court’s

Electronic Case Filing System (“ECF”) when referring to the

3

Plaintiff had been living in that housing area since March 2020

without incident. (Id. at p.7.) After “[t]he corrections

officers had open[ed] everyone’s gate to have rec[reation time]”,

Plaintiff went to the television area and asked the two other

inmates there if he could change the channel. (Id.) According

to the Complaint, these inmates, who were MS-13 members, told him

he could not. (Id.) A third MS-13 member joined the group, and

Plaintiff again asked to change the channel. (Id.) After they

denied Plaintiff’s request, Plaintiff alleges that he left the

television area but was thereafter confronted by four MS-13

members. (Id. at pp.7-8.) Plaintiff alleges that he was punched

in the head from behind and then the gang members punched, kicked,

and stabbed him and there was “no staff around for my saf[e]ty.”

(Id.) Plaintiff describes that the assault lasted for

approximately four minutes and then staff “saw what was going on”

and ordered the gang members to “lock-in.” (Id. at pp.8-9.)

Plaintiff claims he was “hurt badly” and that his right

bicep, chest, left eye, and left ear were stabbed and bleeding.

(Id. at p.9.) Plaintiff was taken to the medical unit where he

received nineteen stitches. (Id.) Plaintiff seeks to recover a

damages award in the sum of $20 million. (Id. at p.5, ¶ III.)

Complaints.

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II. Mowatt I

Plaintiff filed another in forma pauperis Complaint

against the Defendant alleging that he was assaulted by gang

members on May 28, 2020. (See Mowatt I, Compl., D.E. 1.)

According to the Complaint, Plaintiff was recovering from a

previous assault, i.e., the May 23rd assault, by MS-13 members and

therefore was not “going to attend Rec-yard because [ ] I was

as[s]aulted a week ago and I wanted to heal.” (Id. at p.6.)

Plaintiff claims that “the staff wasn’t suppose[d] to open my gate

due to my injuries and I was a lock-in.” (Id.) At approximately

8:30 a.m., Plaintiff “went back to sleep” and alleges that he

“suddenly felt punches, feet on top of me” and realized he was

again being assaulted by three MS-13 gang members. (Id. at p.6.)

According to the Complaint, “maybe three to eight minutes later,

the officer told everyone to lock-in, go to your cells.” (Id. at

p.7.) Plaintiff suffered injuries to his eyes, ribs, head, chest,

and stomach and was taken “to medical to get cleaned up” where he

stayed for four days before being moved into protective custody.

(Id. at pp. 4, 6-7.) Plaintiff seeks to recover a damages award

in the sum of $30 million. (Id. at p.5, ¶ III.)

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III. Mowatt III

Plaintiff filed a third in forma pauperis Complaint,

which like his other two Complaints, raises claims that the

Defendant failed to protect him from a gang assault. (See Mowatt

III, Compl., D.E. 1.) More specifically, Plaintiff alleges that,

on July 2 or 3, 20203 at approximately 9:55 a.m. on E-2-A-16, he

returned to his cell and discovered that “all my commissary is

gone, from candy sweet to cosmetic to t-shirt to boxer everything.”

(Id. at p. 6.) Plaintiff describes that there were “six Crips by

my cell” and that he asked them if they took his belongings. (Id.)

Plaintiff then said “we have to fight because y’all stole my

things.” (Id.) Plaintiff was then jumped by three inmates in his

cell who punched and kicked him after he fell to the floor. (Id.

at p. 7.) Plaintiff describes that the assault lasted for about

two minutes and then the inmates were ordered to lock in. (Id.)

At that time, “staff walk[ed] around” and saw that Plaintiff’s

left eye was injured and brought Plaintiff to the hospital. (Id.)

Plaintiff stayed at the medical unit until July 8, 2020 at which

time he was transferred to the Suffolk County Correctional

3 Plaintiff is inconsistent as to the date of the alleged

assault. He initially alleged that the assault occurred on July

3, 2020 (see Mowatt III, Compl., p.3, ¶ II), but later that it

occurred on July 2, 2020 (compare Mowatt III, Compl., p.6).

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Facility. (Id.) Plaintiff claims to have suffered injuries to

both eyes, his back, and describes that his “right lower tooth

crack[ed] in ha[l]f[ ]” for which he seeks to recover a damages

award in the sum of $20 million. (Id. at pp. 4-5, ¶¶ II.A, III.)

DISCUSSION

I. In Forma Pauperis Applications

Upon review of Plaintiff’s declarations in support of

his applications to proceed in forma pauperis, the Court finds

that Plaintiff is qualified to commence these actions without

prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).

Therefore, Plaintiff’s requests to proceed in forma pauperis are

GRANTED.

II. Consolidation

Under Federal Rule of Civil Procedure 42, “[i]f actions

before the court involve a common question of law or fact, the

court may: (1) join for hearing or trial any or all matters at

issue in the actions; (2) consolidate the actions; or (3) issue

any other orders to avoid unnecessary cost or delay.” FED. R. CIV.

P. 42(a). “The trial court has broad discretion to determine

whether consolidation is appropriate.” Johnson v. Celotex Corp.,

899 F.2d 1281, 1284-85 (2d Cir. 1990). Consolidation of cases

with common questions of law or fact is favored “to avoid

unnecessary costs or delay,” Johnson, 899 F.2d at 1284, and to

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“expedite trial and eliminate unnecessary repetition and

confusion,” Devlin v. Transp. Commc’n Int’l Union, 175 F.3d 121,

130 (2d Cir. 1999) (internal quotation marks and citation omitted).

“The Second Circuit has long adhered to the first-filed

doctrine in deciding which case to dismiss where there are

competing litigations. Where there are several competing

lawsuits, the first suit should have priority, absent the showing

of balance of convenience or special circumstances giving priority

to the second.” Kellen Co. v. Calphalon Corp., 54 F. Supp. 2d

218, 221 (S.D.N.Y. 1999) (internal quotation marks, alterations,

and citations omitted); accord Adam v. Jacobs, 950 F.2d 89, 92 (2d

Cir. 1991); First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d

76, 79 (2d Cir. 1989). The first-filed rule seeks to conserve

judicial resources and avoid duplicative litigation. See Jacobs,

950 F.2d at 92; First City Nat’l Bank & Trust Co., 878 F.2d at 80;

Kellen, 54 F. Supp. 2d at 221.

Here, Plaintiff’s Complaints are against the same

Defendant, and are largely repetitive, albeit the events are

alleged to have occurred on different dates. Certainly,

Plaintiff’s claims involve common issues of law and fact.

Accordingly, in the sound exercise of its discretion and in

consideration of the chronological order of events underlying the

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Complaints, 4 the Court orders that Plaintiff’s cases be

CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into

the second filed case, Mowatt II, Case Number 20-CV-3890(JS)(AKT).

The Clerk of Court is DIRECTED to: (1) consolidate these actions;

and (2) mark the cases assigned Case Numbers 20-CV-3889, and 20-

CV-3891 CLOSED. Any future filings are to be docketed in Case

Number 20-CV-3890(JS)(AKT) only.

III. 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. 28 U.S.C. § 1915A.

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

4 The Plaintiff filed his Notice of Change of Address in Mowatt

II only, which the Court construes as indicating Plaintiff’s

belief that this is his lead case. See supra note 1.

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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, 173 L. Ed. 2d 868 (2009) (citations

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).

A. Section 1983 Claims Against the Jail

As a threshold matter, Plaintiff has named the Jail as

the sole Defendant. However, Plaintiff’s claims against the Jail

are implausible because it is an administrative arm of Nassau

County and thus lacks the capacity to be sued as a separate entity.

See, e.g., Clements v. Nassau Cty. Corr. Ctr., 10-CV-0422, 2010 WL

1779985, * 3 (E.D.N.Y. Apr. 30, 2010). Given Plaintiff’s pro se

status and affording his Complaints a liberal construction, the

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Court has considered whether Plaintiff has alleged a plausible

Section 1983 claim against the municipality, Nassau County, and

finds that he has not for the reasons that follow.

It is well-established that a municipality such as

Nassau County cannot be held liable under § 1983 on a respondeat

superior theory. See Monell v. Dep’t of Soc. Servs. of N.Y. City,

436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978);

Roe v. City of Waterbury, 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, 563

U.S. 51, 60, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)); see

also Monell, 436 U.S. at 690-91. “[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 690-91 (internal citation

omitted).

To establish the existence of a municipal policy or

custom, the plaintiff must allege: (1) the existence of a formal

policy which is officially endorsed by the municipality, see

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Connick, 563 U.S. at 60-61; (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, 563

U. S. at 61; 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 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)).

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Here, even affording the pro se Complaints a liberal

construction, there are no factual allegations from which the Court

could reasonably construe a plausible Section 1983 cause of action

against Nassau County.

IV. Leave to Amend

Given the Second Circuit’s guidance that a pro se

complaint should not be dismissed without leave to amend unless

amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000), the Court has carefully considered whether leave

to amend is warranted here. Because the defect in Plaintiff’s

claims against the Jail is substantive and would not be cured if

afforded an opportunity to amend, leave to amend the Complaint

against this Defendant is DENIED. However, in an abundance of

caution, Plaintiff is GRANTED leave to file a single, consolidated

Amended Complaint in order to allege any valid claims he may have

against the County of Nassau, any individual Nassau County

corrections officers, and/or any other proper defendant. If

Plaintiff does not know the names of the individuals he seeks to

hold liable, he may name them as “John Doe” or “Jane Doe” in the

Amended Complaint and include sufficient factual information

concerning these individual(s) so that their identities may be

determined.

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Further, Plaintiff is advised that a deliberate

indifference claim based upon a defendant’s failure to protect

must include allegations that: (1) the plaintiff “is incarcerated

under conditions posing a substantial risk of serious harm, and

(2) that the prison official had a sufficiently culpable state of

mind.” Morgan v. Dzurenda, 956 F.3d 84, 89 (2d Cir. 2020)

(internal quotation marks and citation omitted). Although prison

officials have an obligation to protect inmates from “substantial

risk of serious harm . . . [not] every injury suffered by one

prisoner at the hands of another . . . translates into

constitutional liability.” Avincola v. Maldonado, No. 04-CV-3529,

2005 WL 3116760, at *1 (2d Cir. Nov. 22, 2005) (internal quotation

marks and citation omitted). “[A] failure to protect claim

encompasses an objective and a subjective prong.” Sutton v.

Rodriguez, No. 18-CV-01042, 2020 WL 5504312, at *7 (S.D.N.Y. Sept.

8, 2020). “A substantial risk of harm may be demonstrated by

allegations that prison officials knew there was a previous

altercation between a plaintiff and his attacker or that a

plaintiff has identified his attacker as a known enemy and

requested to be kept separate.” Sutton, 2020 WL 5504312, at *7

(citing Dublin v. New York City Law Dep’t, No. 10-CV-2971, 2012 WL

4471306, at *5 (S.D.N.Y. Sept. 26, 2012)). The subjective prong

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requires that a plaintiff demonstrate that the defendant “has

knowledge that an inmate faces a substantial risk of serious harm

and [the defendant] disregard[ed] that risk by failing to take

reasonable measures to abate the harm.” Parris v. New York State

Dep’t Corr. Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013)

(quoting Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir.

1996)).

Any Amended Complaint shall be clearly labeled “Amended

Complaint”, shall bear only the Case Number of the Consolidated

Action, 20-CV-3890(JS)(AKT), and shall be filed within thirty (30)

days from the date of this Order. Plaintiff is cautioned that an

Amended Complaint completely replaces the three original

Complaints he filed. Therefore, Plaintiff must include any and

all claims against any Defendant(s) he seeks to pursue in the

Amended Complaint, should he elect to file an Amended Complaint.

CONCLUSION

For the reasons set forth above, Plaintiff’s

applications to proceed in forma pauperis are GRANTED, and the

Complaints are CONSOLIDATED under Case Number 20-CV-3890(JS)(AKT).

The Clerk of Court is DIRECTED to: (1) consolidate these actions;

and (2) mark the cases assigned Case Numbers 20-CV-3889 and 20-

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CV-3891 CLOSED. Any future filings are to be docketed in Case

Number 20-CV-3890(JS)(AKT) only.

Plaintiff’s claims against the Jail are DISMISSED

pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). Plaintiff is

GRANTED LEAVE TO FILE A SINGLE, CONSOLIDATED AMENDED COMPLAINT in

accordance with this Order against the County of Nassau and/or any

other proper defendant. Any Amended Complaint shall be clearly

labeled “Amended Complaint”, shall bear only the lead Case Number

of this Consolidated Action, i.e., Case Number 20-CV-

3890(JS)(AKT), and shall be filed within thirty (30) days from the

date of this Order. Plaintiff is cautioned that an Amended

Complaint completely replaces his three original Complaints.

Therefore, Plaintiff must include any and all claims against any

Defendant(s) he seeks to pursue in the Amended Complaint, should

he elect to file an Amended Complaint.

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 the pro se Plaintiff at the Suffolk County

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Correctional Facility and to update his address in Case Numbers

20-CV-3889 and 20-CV-3891.

SO ORDERED.

Joanna Seybert

/s/

JOANNA SEYBERT, U.S.D.J.

Dated: November 19, 2020

Central Islip, New York

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