Gray v. Dzurenda

UNITED STATES DISTRICT COURT For Online Publication Only

EASTERN DISTRICT OF NEW YORK

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BARRINGTON GRAY,

Plaintiff,

ORDER

-against- 20-CV-2585 (JMA)(AYS)

CORRECTIONS OFFICER RIPP,

SGT. MCKINNEY, #294; FILED

CLERK

Defendants.

12/9/2020 10:04 am

---------------------------------------------------------------X U.S. DISTRICT COURT

BARRINGTON GRAY, EASTERN  DISTRI C T   O F   N E W  Y O R K

LO NG ISLA ND OFF ICE

Plaintiff,

-against- 20-CV-2865 (JMA)(AYS)

NASSAU COUNTY SHERIFF DZURENDA,

SGT. MCKINNLEY, OFFICER RIPP,

4 ADDITIONAL UNKNOWN OFFICERS,

Defendants.

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AZRACK, United States District Judge:

Incarcerated pro se plaintiff Barrington Gray (“Plaintiff”) has filed two similar in forma

pauperis complaints alleging claims arising from the same event alleged to have occurred on April

30, 2020. For the reasons that follow, the application to proceed in forma pauperis filed for the

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complaint assigned docket number 20-2865 (“Gray II”) is granted and that complaint is

consolidated with the case assigned docket number 20-2585 (“Gray I”).

I. BACKGROUND

A. Gray I

On June 10, 2020, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 against the

Nassau County Jail (the “Jail”), the Nassau County Sheriff’s Department (the “Sheriff’s

Department”), Nassau County Sheriff Dzurenda (“Sheriff Dzurenda”), Corrections Officer (“C.O.

Ripp”), Sgt. McKinney, Donna L. Hennig (“Hennig”), and three unidentified corrections officers

alleging that, on April 30, 2020, he slipped on a puddle of water by the showers at the Jail and fell.

(Gray I, ECF No. 1.)1

By Order dated August 18, 2020, the Court granted Plaintiff’s application to proceed in

forma pauperis, denied Plaintiff’s application for the appointment of pro bono counsel without

prejudice, and sua sponte dismissed Plaintiff’s claims with prejudice as against the Jail and the

Sheriff’s Department pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b) for failure to allege a

plausible claim. (Gray I, ECF No. 15.) The Court also dismissed Plaintiff’s claims against

Sheriff Dzurenda and Hennig without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)

and ordered that Plaintiff’s claims against C.O. Ripp and Sgt. McKinney shall proceed. (Id.)

B. Gray II

On June 29, 2020 Plaintiff filed another in forma pauperis complaint against Sheriff

Dzurenda, Sgt. McKinney2, Officer Ripp, and four unknown corrections officers alleged to work

at the Jail alleging claims arising from his April 30, 2020 slip and fall. (Gray II, ECF No. 1.)

Again, Plaintiff did not remit the filing fee, nor did he file an application to proceed in forma

pauperis and the required Prisoner Litigation Authorization form (“PLRA”). Accordingly, by

Notice of Deficiency also dated June 29, 2020, Plaintiff was instructed to either remit the $400

1 Plaintiff did not remit the filing fee nor did he file an application to proceed -in -fo-rm-a- p-au-p-er-is and the required

Prisoner Litigation Authorization form (“PLRA”) at the time he filed the complaint. Accordingly, by Notice of

Deficiency also dated June 10, 2020, Plaintiff was instructed to either, within fourteen (14) days, remit the $400 filing

fee or complete and return the enclosed -in- fo-rm-a- p-au-p-eri-s application and PLRA. (See Gray I, ECF No. 3.) On June

22, 2020, Plaintiff filed a letter describing his financial status and the PLRA. (See Gray I, ECF Nos. 6-7.) On July

9, 2020, Plaintiff filed an -in -fo-rm-a- p-au-p-er-is application and another PLRA and, on July 14, 2020, Plaintiff filed an

application for the appointment of pro bono counsel to represent him in this case. (See Gray I, ECF Nos. 10-12.)

2 Although Plaintiff uses several different spellings for Sgt. McKinney in the complaint filed in Gray II, the Court

understands that Plaintiff intends to name Sgt. McKinney, the same individual he named in Gray I.

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filing fee or complete and return the enclosed in forma pauperis application and PLRA within

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fourteen (14) days. (Gray II, ECF No. 2.) Having failed to comply, by Order dated August 14,

2020, the Court extended Plaintiff’s time to comply through September 1, 2020. (Gray II, ECF

No. 6.) On August 26, 2020, Plaintiff timely filed an application to proceed in forma pauperis

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and the PLRA. (Gray II, ECF Nos. 7-8.)

Upon review of Plaintiff’s submissions, the Court finds that he is qualified by his

financial status to commence Gray II without prepayment of the Court’s filing fee. Accordingly,

Plaintiff’s application to proceed -in -fo-rm--a -pa-u-p-e-ri-s is granted. However, for the reasons set forth

in Gray I and below, Plaintiff’s claims against Sheriff Dzurenda are sua sponte dismissed without

prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to allege a plausible claim.

Plaintiff’s claims against C.O. Ripp and Sgt. McKinney shall proceed and are consolidated with

the claims alleged in Gray I.3

II. THE COMPLAINT IN GRAY II4

Like his complaint in Gray I, Plaintiff’s complaint in Gray II is brief. It is submitted on

the Court’s Section 1983 complaint form with a handwritten two-page attachment. (See Gray II,

ECF No. 1.) Plaintiff again alleges that on April 30, 2020, he slipped on a puddle of water by the

showers at the Jail and fell. Plaintiff describes that “he landed on his back” and “heard a pop in

my back.” (Gray II, Compl., Ex. A.) According to Plaintiff, he requested assistance from the

unidentified corrections officers present, but they laughed and told him to get up. (Id.) Sgt.

3 Plaintiff does not provide any identifying information regarding the unnamed individual defendants. Accordingly,

should Plaintiff learn their identities during discovery, he may seek leave to amend the complaint at such time.

4All material allegations in the complaint are assumed 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).

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McKinney and Officer Ripp are alleged to have then picked plaintiff up off the floor “and assaulted

me while they carried me to my cell.” (Id.) Plaintiff claims he was in “extreme pain” and

requested medical attention. (Id.) Plaintiff alleges that his request was denied, and he was not

given his evening medication. (Id.) According to the complaint, the next morning, May 1, 2020,

“the nurse accepted my sick call for immediate medical attention” and Plaintiff was given a back

brace and unspecified medication. (Id.) A few days later, Plaintiff alleges that a “secondary

nurse reviewed my injuries and decided to give me steroid medication, physical therapy,” and

moved Plaintiff to the Jail’s medical unit. (Id.) As a result, for relief, Plaintiff seeks, inter alia,

a damages award in the sum of $20 million.

III. DISCUSSION

A. 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 Gray II without prepayment of the

filing fee. 28 U.S.C. ' 1915(a)(1). Therefore, Plaintiff=s application in Gray II to proceed in

forma pauperis is granted.

B. Consolidation of the Complaints in Gray I and Gray II

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 is appropriate in order to serve the interests of judicial economy. See, e.g., Jacobs

v. Castillo, No. 09 Civ. 953, 2009 WL 1203942, at *3 (S.D.N.Y. Apr. 23, 2009) (“Consolidation

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would further the goal of ‘judicial economy’ because discovery in each case is likely to be

identical, motion practice and trial in the two cases would most likely cover the same facts and

some identical issues of law.”). Specifically, 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

“expedite trial and eliminate unnecessary repetition and confusion,” Devlin v. Transp. Commc’n

Int’l Union, 175 F.3d 121, 130 (internal citations omitted).

“The Second Circuit has long adhered to the first-filed doctrine in deciding which case to

dismiss where there are competing litigations.” Kellen Co. v. Calphalon Corp., 54 F. Supp. 2d

218, 221 (S.D.N.Y. 1999) (citing 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 [] provides

‘that where there are two competing lawsuits, the first suit should have priority, absent the showing

of balance of convenience or special circumstances giving priority to the second.’” Horowitz v.

148 South Emerson Assocs. LLC, 888 F.3d 13, 22 (2d Cir. 2018) (quoting AEP Energy Servs. Gas

Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 722 (2d Cir. 2010)); see also Burns v. Cnty. of

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Nassau, 337 F. Supp.3d 210, 213 (E.D.N.Y. 2018) (internal quotation marks omitted). The first-

filed rule seeks to conserve judicial resources and avoid duplicative litigation. See Adam, 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, the complaints filed by Plaintiff both allege deprivations of his constitutional rights

by the named defendants—who are the same in both complaints—and seek to impose liability

arising from the same April 30, 2020 incident. Indeed, Plaintiff alleges that the facts involved in

each complaint are the same. (See Gray I and Gray II, Compls. generally, ECF Nos. 1.)

Accordingly, the Court orders that Plaintiff’s complaints be consolidated pursuant to Federal Rule

of Civil Procedure 42 into the first filed case, 20-CV-2585. The Clerk of Court is directed to: (1)

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consolidate these actions; and (2) mark Gray II (20-CV-2865) closed. All future filings are to be

docketed in only 20-2585.

C. Standard of Review

The Prison Litigation Reform Act requires a district court to screen a civil complaint

brought by a prisoner against a governmental entity or its agents and dismiss the complaint, or any

portion of the complaint, if the complaint is “frivolous, malicious, or fails to state a claim upon

which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Similarly, pursuant to the in forma

pauperis statute, a court must dismiss an action if it determines that it “(i) is frivolous or malicious,

(ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss

the action as soon as it makes such a determination. 28 U.S.C. § 1915A(b).

Pro se submissions are afforded wide interpretational latitude and should be held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In

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addition, the Court is required to read Plaintiff’s pro se complaint liberally and interpret it as raising

the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011)

(per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

The Supreme Court has held that pro se complaints need not even plead specific facts;

rather the complainant “need only give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation

marks and citations omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do

justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

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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 (2009) (citations omitted). The plausibility standard requires “more than a

sheer possibility that a defendant has acted unlawfully.” Id. at 678. 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.’” Id. at 678 (quoting Twombly, 550

U.S. at 555).

D. 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. In order to state a Section 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)); -se -e -al-so- -A-m-. -M-f-rs-. -M-u-t-. -In-s.- C-o-.- v-. -S-u-ll-iv-an-, 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.

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Dylag, 188 F.3d 51, 53 (2d Cir. 1999). Moreover, in an action brought pursuant to Section 1983,

a plaintiff must allege the personal involvement of the defendant in the purported constitutional

deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d

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470, 484 (2d Cir. 2006)).

1. Section 1983 Claims Against Sheriff Dzurenda

Plaintiff names Sheriff Dzurenda as a defendant in the caption of the Gray II complaint but

does not include any factual allegations against him. Indeed, the complaint does not again

mention Sheriff Dzurenda other than in the “Identification of Parties” section. (See Gray II

Compl., ECF No. 1 at 2.) As noted above, in order to allege a plausible Section 1983 claim, a

plaintiff must allege the personal involvement of the defendant in the purported constitutional

deprivation. Farid, 593 F.3d at 249. “Personal involvement” may be established by evidence of

a supervisor’s direct participation in the challenged conduct or “by evidence of an official’s (1)

failure to take corrective action after learning of a subordinate’s unlawful conduct, (2) creation of

a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates

who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on

information regarding the unlawful conduct of subordinates.” Hayut v. State Univ. of New York,

352 F.3d 733, 753 (2d Cir. 2003). An “individual cannot be held liable for damages under Section

1983 ‘merely because he held a high position of authority.’” Back v. Hastings on Hudson Union

Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d

Cir. 1996)). Where a Section 1983 claim fails to allege the personal involvement of the defendant,

it fails as a matter of law. See Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010).

Here, although Plaintiff names Sheriff Dzurenda as a defendant, there are no allegations of

conduct or inaction attributable to him. Nor does Plaintiff include any factual allegations such

that the Court could reasonably construe a plausible Section 1983 claim based on a supervisory

liability theory. Accordingly, Plaintiff’s sparse allegations do not allege plausible claims as

against Sheriff Dzurenda and thus are dismissed without prejudice pursuant to 28 U.S.C. §§

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1915(e)(2)(B)(ii), 1915A(b).

2. Claims Against C.O. Ripp and Sgt. McKinney

Though thin, the Court declines to sua sponte dismiss Plaintiff’s claims alleged against

C.O. Ripp and Sgt. McKinney at this early stage in the proceedings. Accordingly, such claims

shall proceed and are consolidated with those alleged in Gray I.

Given the National Emergency caused by the COVID-19 virus, the Court requests that the

Clerk of the Court send a copy of this order together with the Gray II complaint to the Nassau

County Attorney and requests that the Nassau County Attorney accept service on behalf of these

defendants. The Nassau County Attorney, who has already appeared to defend these defendants

in Gray I, need not undertake to defend these individuals. Rather, in the interests of efficiency

and economy, acceptance by the County Attorney would obviate the need for service by the United

States Marshal Service, which is presently suspended. See Admin. Orders 2020-12, 2020-19,

2020-19-1.

IV. CONCLUSION

For the forgoing reasons, Plaintiff’s application to proceed in forma pauperis in Gray II is

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granted and the complaints in Gray I and Gray II are consolidated pursuant to Federal Rule of Civil

Procedure 42 into the first filed case, 20-CV-2585. The Clerk of Court is directed to: (1)

consolidate these actions; and (2) mark Gray II (20-CV-2865) closed. All future filings are to be

docketed in only 20-2585. Plaintiff’s claims against Sheriff Dzurenda in Gray II are dismissed

without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). Plaintiff’s claims against

C.O. Ripp and Sgt. McKinney shall proceed. The Clerk of Court shall send a copy of this order

together with the Gray II complaint to the Nassau County Attorney and requests that the Nassau

County Attorney accept service on behalf of these defendants.

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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

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of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

The Clerk of Court shall mail a copy of this Order to Plaintiff at his last known address.

SO ORDERED.

____/s/ (JMA)___________

Dated: December 9, 2020 Joan M. Azrack

Central Islip, New York United States District Judge

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