Lapierre v. Dzurenda

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EUGENE G. LAPIERRE, DANIEL PADILLA,

LENNY TAVERAS, SHAWN TRENT, ELY

THOMAS, JAHLIL TREASURE, MATTHEW

MARTINEZ, ANTINIO CULLAL, NERCIN

CHACON, WESTLEY WITTS, JONATHAN

SCULLY, and JOSE HERNDEZ,

Plaintiffs, MEMORANDUM & ORDER

21-CV-0464(JS)(ARL)

-against-

SHERIFF JAMES E. DZURENDA,

DR. DONNA M. HENIG, CAPTAIN

DONAHUE, CAPTAIN GOLIO,

SGT. MARONNE, C.O. BARRERA,

C.O. HORAN, C.O. TORCHA,

GRIEVANCE SUPERVISOR JOHN DOE, and

KITCHEN SUPERVISOR JOHN DOE,

Defendants.

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APPEARANCES

For Plaintiffs: Eugene G. LaPierre, 2017008467, pro se

Daniel Padilla, 2020000890, pro se

Lenny Taveras, pro se

Shawn Trent, pro se

Ely Thomas, 2017030019, pro se

Jahlil Treasure, pro se

Antinio Cullal, pro se

Nercin Chacon, pro se

Westley Witts, pro se

Jonathan Scully, 2019040065, pro se

Jose Herndez, pro se

Nassau County Correctional Facility

100 Carman Avenue

East Meadow, New York 11554

For Defendants: No Appearances

SEYBERT, District Judge:

On or around January 27, 2021, plaintiffs Eugene

LaPierre (“LaPierre” or “Plaintiff”), Daniel Padilla, Lenny

Taveras, Shawn Trent, Ely Thomas, Jahlil Treasure, Matthew

Martinez, Antinio Cullal, Nercin Chacon, Westley Witts, Jonathan

Scully, and Jose Herndez, who are incarcerated and proceeding pro

se, initiated this action by filing a purported class action

Complaint against Nassau County Sheriff James E. Dzurenda,

Dr. Donna M. Henig, Captain Donahue, Captain Golio, Sergeant

Maronne, C.O. Barrera, C.O. Horan, C.O. Torcha, Grievance

Supervisor John Doe, and Kitchen Supervisor John Doe

(collectively, “Defendants”). (See Compl., ECF No. 1.) Plaintiff

LaPierre also filed an application to proceed in forma pauperis

(ECF No. 2), an application pursuant to Federal Rule of Civil

Procedure 65 for preliminary injunctive relief (ECF No. 4), a

motion to amend the Complaint (ECF No. 32), and a motion for class

certification and pro bono counsel (ECF No. 33).

For the following reasons, this action shall proceed

with Plaintiff LaPierre as the sole Plaintiff, except that

Plaintiff’s Eighth Amendment cruel and unusual punishment claim,

his denial of access to the courts claim, and his claims against

the John Doe Kitchen Supervisor are DISMISSED WITHOUT PREJUDICE.

Additionally, Plaintiff LaPierre’s application to proceed in forma

pauperis is GRANTED; the application for a preliminary injunction

is DENIED; leave to amend is GRANTED; the motion for class

certification is DENIED; and the request for the appointment of

pro bono counsel is DENIED without prejudice and with leave to

renew at a later stage in these proceedings, if warranted.

Moreover, claims brought by Plaintiffs Padilla, Treasure,

Martinez, Cullal, Chacon, and Herndez are DISMISSED WITHOUT

PREJUDICE for failure to prosecute. Finally, claims asserted by

Plaintiffs Scully, Thomas, Trent, Taveras, and Witts are DISMISSED

WITHOUT PREJUDICE to refiling as separate actions.

BACKGROUND

LaPierre’s fifty-three-page Complaint alleges, pursuant

to 42 U.S.C. § 1983 (“Section 1983”), claims for: excessive force,

denial of due process, cruel and unusual punishment, and denial of

access to the courts, inter alia. The Complaint’s allegations

relate to six categories: (1) Nassau County Correctional Center’s

“arbitrary” disciplinary procedures (Compl. ¶¶ 53-63); (2) the

“grievance supervisor” (id. ¶¶ 64-70); (3) the “kitchen

supervisor” (id. ¶¶ 70-75); (4) the law library (id. ¶¶ 76-92);

(5) COVID-19 concerns (id. ¶¶ 93-103); and (6) the overall

conditions of confinement (id. ¶¶ 104-10).

More specifically, Plaintiff1 alleges that on

October 24, 2020, he was walking to the recreation yard with an

1 As noted above, the Court refers to “Plaintiff” and “LaPierre”

interchangeably.

envelope and was instructed by Officer Horan to “put the mail back,

no mail in the yard.” (Compl. ¶ 11.) Plaintiff complied, put the

envelope on a table, and told Officer Horan “I don’t want no

problems super cop.” (Id.) Officer Horan and other officers

ordered Plaintiff to return to his cell and Plaintiff objected,

telling Officer Horan to “suck his dick.” (Id. ¶ 12.) According

to the Complaint, Officer Horan punched Plaintiff in the head and

Plaintiff fought back. (Id.) Other unidentified officers pulled

Plaintiff away from Officer Horan, handcuffed and shackled him,

and “repeatedly kicked [Plaintiff] in the back, his right side

rib[]s and stomped on his neck and back.” (Id. ¶ 13.)

Plaintiff was “placed in solitary confinement also known

as the Behavior Modification Unit (BMU).” (Id. ¶ 14.) Plaintiff

claims that “[i]t is common practice for officers at Nassau County

Correction to assault prisoners and then place assault charges

[o]n the prisoner. [Plaintiff] received a misbehavior report for

assault on staff when in fact he was assaulted in front of 5 or 6

officers.” (Id.) Plaintiff alleges that his cell in the BMU was

“dirty” and that he was provided “two green blankets, a bar of

soap and a roll of tissue.” (Id. ¶ 15.) Plaintiff also alleges

that he was not given a clean cell, a shower, a phone call, “rec”

yard time, or any of his personal property, in violation of “BMU

Policy.” (Id.) Plaintiff complains that the food in the BMU is

“always served cold” and “everything is dumped on top of one

another.” (Compl. ¶ 17.) Further, Plaintiff asserts that Captain

Donahue “strictly enforced” the BMU policy insofar as it requires

a strip search upon entry to the BMU. (Id. ¶ 15.) Plaintiff

alleges that by letters dated April 5, 2020 and November 10, 2020,

he complained about the conditions at the BMU to Sheriff Dzurenda

but did not receive a response. (Id. ¶ 19.)

As a result of the October 24, 2020 incident between

Plaintiff and Officer Horan, a disciplinary hearing was scheduled

for November 11, 2020. (Id. ¶ 20.) On November 11, 2020, Plaintiff

argued that he was not ready to proceed because he needed

assistance identifying the officers, among others, to call as

witnesses. (Id. ¶¶ 20-21.) Sergeant Maronne, who presided over

the hearing, denied the adjournment request and the hearing

proceeded even though Plaintiff “was unable to prepare and submit

a defense.” (Id. ¶ 21.) Sergeant Maronne found Plaintiff guilty

of assaulting Officer Horan and imposed sanctions consisting of

“180 days lock in, 60 days lost of visits, 24 weeks lost of

commissary, a disciplinary surcharge of $25 and a restitution in

the amount of $100.” (Id.) Plaintiff claims that he suffers from

high blood pressure, anxiety attacks, and chest pains as a result

of the time he spent in the BMU and the BMU’s conditions.2 (Id. ¶

51.)

2 According to the Complaint, Plaintiff’s situation is not unique.

He details other individuals who were, or are, housed in the BMU

Plaintiff also asserts allegations regarding the

disciplinary and grievance procedures at the Nassau County

Correctional Center. (Id. ¶¶ 53-70.) According to the Complaint,

the sanctions imposed are “arbitrary,” “excessive,” and

“unwarranted.” (Id. ¶¶ 53-54.) In addition to the October 24,

2020 incident, Plaintiff provides several examples where he

received misbehavior reports that gave rise to a disciplinary

hearing over his objections. Specifically, Plaintiff alleges that

he was not prepared because he did not receive notice of the

charges or an opportunity to prepare a defense. (Id. ¶¶ 55-63.)

With regard to grievances, Plaintiff claims that there is no

individual to contact about the grievance procedures because the

“grievance supervisor is unknown to the entire prison population

at the Nassau County Correctional Facility.” (Id. ¶ 64.)

Plaintiff believes that grievances “disappear” and are thrown

away. (Id.)

Next, Plaintiff alleges that the “Kitchen Supervisor”

provides the “lowest grade of food possible” that “is completely

lacking in nutrition.” (Compl. ¶ 71.) He alleges to have filed

a grievance wherein in requested a menu because the food is often

difficult to identify. (Id. ¶¶ 73-74.) The grievance was denied

and lists their circumstances and the conditions in the BMU.

(Compl. ¶¶ 23-50.)

on the grounds that he “cannot have access to [the] kitchen menu,

but can be verbally informed[.]” (Id. ¶ 73.)

Plaintiff further complains that the law library, as

well as access thereto, is inadequate. (Id. ¶¶ 76-92.) He avers

that the law library lacks “legal resources on how to seek an

adjournment or a stay in civil matters.” (Id. ¶ 77.) Plaintiff

claims that he had an on-going civil case pending in the Franklin

County Supreme Court and was unable to timely request an

adjournment, which resulted in the dismissal of the case. (Id.)

Plaintiff also alleges that in May 2019, all law books were removed

from the library to be replaced with computers that did not arrive

until February 2020. (Id. ¶ 78.) According to Plaintiff, the

“newly installed computers in the law library” do “not contain the

January 1, 2020 Bail Reform Laws.” (Id. ¶ 78.) Moreover, inmates

are not permitted to use the photocopy machine. Accordingly,

Plaintiff filed a grievance seeking to use the copy machine so he

could serve five copies of a nineteen-page motion in a state court

case. (Id. ¶ 79.) The grievance was denied on the grounds that

Plaintiff can duplicate the motion by hand. (Id.) According to

Plaintiff, he has suffered retaliation for his “non-stop

complaints [and] grievances” about law library staff.

Specifically, he claims that his legal papers have been thrown in

the toilet and/or confiscated. (Compl. ¶ 81.) He also complains

that, since November 2020, he has been denied a pen and sufficient

paper, which delayed the filing of this action. (Id. ¶ 115.)

Plaintiff asserts that the “complaint cannot be completed until

[he] is provided with the necessary paper and a BIC pen.” (Id. ¶

118.)

Finally, Plaintiff complains about the Nassau County

Correctional Center’s COVID-19 response and protocols. (Id. ¶¶

93-103.) The Complaint alleges that Dr. Henig refuses to test

inmates for COVID-19 and therefore, infected inmates “mix with the

prison population and infect others.” (Id. ¶ 95.) Plaintiff also

complains that “officers refus[e] to wear protective gear.” (Id.)

According to Plaintiff, on October 14 and 15, 2020, he experienced

shortness of breath, a headache, dry cough, and loss of taste and

smell. (Id. ¶¶ 99.) After “being seen by medical,” Plaintiff was

moved to an “isolation cell.” (Id.) According to Plaintiff, this

“five day isolation [was] [ . . . ] a punishment for voicing his

concerns and encouraging others to speak up.” (Id.)

The Complaint seeks: (1) “to make this a class action

lawsuit” and the appointment of class counsel; (2) “leave to amend

and complete the complaint once he is provided the needed paper,

[] pens, and whatever other needed legal resources”; (3) an order

directing the Defendants to release all individuals from the BMU

“due to the cruel and unusual living conditions”; (4) a trial; and

(5) an order directing Defendants to test all prisoners and staff

for COVID-19. (Compl. ¶¶ 120-26.)

DISCUSSION

I. Claims Brought By Padilla, Treasure, Martinez, Cullal,

Chacon, and Herndez are Dismissed Without Prejudice for

Failure to Prosecute

As a threshold matter, although the caption names twelve

individuals as plaintiffs, only LaPierre signed the Complaint and

completed an application to proceed in forma pauperis (“IFP”) and

the required Prisoner Litigation Reform Authorization (“PLRA”)

form. (See Compl.; IFP Mot., ECF No. 2; PLRA Form, ECF No. 3.)

Accordingly, by Notices of Deficiency dated January 28, 2021, the

Court notified the remaining eleven Plaintiffs that, for their

claims to proceed, they must return a signed copy of the Complaint

together with the filing fee or a completed IFP application and

PLRA form. (See Notices of Deficiency, ECF Nos. 6-16). To date,

the Notices sent to Plaintiffs Padilla and Treasure at their

addresses of record have been returned to the Court as

undeliverable and marked “Discharged” and “Return to Sender.” (See

ECF Nos. 17-18.) Moreover, Plaintiffs Martinez, Cullal, Chacon,

and Herndez have not filed completed IFP applications, have not

paid the filing fee, nor have they otherwise communicated with the

Court about this case. Accordingly, claims brought by Plaintiffs

Padilla, Treasure, Martinez, Cullal, Chacon, and Herndez are

DISMISSED WITHOUT PREJUDICE for failure to prosecute pursuant to

Federal Rule of Civil Procedure 41(b).

II. This Action Will Proceed on an Individual Basis by LaPierre

and Claims Brought By Scully, Taveras, Trent, Thomas, and

Witts are Dismissed Without Prejudice and with Leave to Refile

Plaintiffs Jonathan Scully (“Scully”), Ely Thomas

(“Thomas”), Shawn Trent (“Trent”), Lenny Taveras (“Taveras”), and

Westley Witts (“Witts”) responded to the Court’s Notices and filed

IFP applications and PLRA forms. (See ECF Nos. 19-31.) Thomas,

Trent, and Witts filed signed affidavits in support of the

Complaint. (ECF Nos. 21 (Thomas Aff.), 24 (Trent Aff.), and 29

(Witts Aff.).) However, Federal Rule of Civil Procedure 11

requires that all plaintiffs sign “[e]very pleading, written

motion, and other paper.” FED. R. CIV. P. 11(a). Other than

LaPierre, none of the named Plaintiffs have filed a signed copy of

the Complaint, even after the Court provided them the opportunity

to do so. “Plaintiffs are not, and will not be, relieved of this

obligation[.]” Sitts v. Weaver, No. 20-CV-1474, 2021 WL 51411, at

*3 (N.D.N.Y. Jan. 6, 2021). On this basis, the claims asserted by

Scully, Thomas, Trent, Taveras, and Witts are DISMISSED WITHOUT

PREJUDICE to refiling separate actions.3 Id. (“[A]dherence to

[Rule 11] in a multi-plaintiff action serves to ensure that each

pro se plaintiff is on notice of the facts, issues, and obligations

of the parties that arise throughout the litigation.”); Smickle v.

3 To be clear: Plaintiffs Scully, Thomas, Trent, Taveras, and Witts

are not required to file a joint complaint. Rather, each

individual is free to file their own, stand-alone complaint.

Ponte, No. 16-CV-3333, 2016 WL 11647065, at *1 (S.D.N.Y. May 9,

2016) (dismissing plaintiffs where they did not sign the

Complaint).

Even if Plaintiffs Scully, Thomas, Trent, Taveras, and

Witts signed the Complaint, the Court would sever the claims

because the Complaint overwhelmingly asserts allegations specific

to Plaintiff LaPierre, whereas the affidavits filed by Thomas,

Trent, and Witts describe events that do not arise out of the same

transactions or occurrences or involve common questions of law or

fact. See Syville v. New York City of New York, No. 20-CV-0570,

2020 WL 2508788, at *1 (S.D.N.Y. May 15, 2020) (noting that

pursuant to Federal Rule of Civil Procedure 21, multiple plaintiffs

may join in one action if “(1) they assert any right to relief

jointly, severally, or arising out of the same transaction,

occurrence, or series of transactions or occurrences, and (2) if

any question of law or fact in common to all plaintiffs will arise

in the action.”). Nonetheless, even assuming all Plaintiffs were

properly joined, “the practical realities of managing this pro se

multi-plaintiff litigation militate against adjudicating the

plaintiffs’ claims in one action.” Id. at *2 (noting that in a

multi-plaintiff litigation, each plaintiff would “be required to

sign every motion, notice, or other submission to be filed. . . .

[and given that all plaintiffs did not reside in the same

location,] the plaintiffs would have, at best, only a very limited

opportunity to discuss case strategy, share discovery, or even

provide each other with copies of the submissions that they were

to file with the Court,” which “can result in piecemeal

submissions, delays, and missed deadlines.”). As such, “allowing

this action to proceed with multiple plaintiffs would not be fair

to the plaintiffs and would not achieve judicial economy.” Id. at

*3.

Finally, Plaintiff styles the Complaint as a class

action. However, as a pro se litigant, Plaintiff may not represent

anyone other than himself. Sitts, 2021 WL 51411, at *3 (“a non-

attorney is not permitted to represent anyone other than himself”)

(citing Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)).

Accordingly, this action shall proceed with Plaintiff LaPierre as

the sole Plaintiff.

III. The Motion to Certify a Class is Denied Without Prejudice

Given that a pro se plaintiff “is unable to represent

others,” Plaintiff’s motion to certify a class (ECF No. 33) is

DENIED WITHOUT PREJUDICE to renewal should an attorney appear on

his behalf. Miller v. Zerillo, No. 07-CV-1719, 2007 WL 4898361,

at *1 (E.D.N.Y. Nov. 2, 2007) (finding that a pro se plaintiff “is

unable to represent others,” and therefore a “motion to certify a

class must be denied” without prejudice and subject “to renewal

should an attorney appear on behalf of plaintiff.”), report and

recommendation adopted, 2008 WL 375498 (E.D.N.Y. Feb. 6, 2008).

IV. LaPierre’s In Forma Pauperis Application is Granted

Upon review of Plaintiff’s declarations in support of

his IFP application, the Court finds that Plaintiff is qualified

by his financial status 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.

V. The Application for a Preliminary Injunction is Denied

Plaintiff filed an application for a preliminary

injunction pursuant to Federal Rule of Civil Procedure 65(a). (See

Mot., ECF No. 4.) In the application, Plaintiff seeks an order

directing Defendants to: (1) release every person housed for more

than fifteen (15) days in the Behavior Modification Unit (BMU) at

the Nassau County Correctional Center into the general population;

(2) provide “LaPierre with all necessary legal material to

complete the attached 1983 civil complaint and legal material

necessary to submit his leave application to the Court of Appeals,”

including “the necessary amount of paper, a BIC pen, and other

necessary legal supplies”; and (3) “provide all prisoners” and

“all officers at N.C.C.C. a mandatory COVID-19 test.” (Id.) For

the reasons that follow, the request is DENIED.

“A plaintiff seeking a preliminary injunction must

establish [1] that he is likely to succeed on the merits, [2] that

he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.”

Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A

preliminary injunction is “an extraordinary and drastic remedy

which should not be routinely granted.” Jefferson v. Soe, No. 17-

CV-3273, 2017 WL 2881138, at *2 (E.D.N.Y. July 6, 2017) (quoting

Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d

Cir. 1981)). Where, as here, the moving party seeks a “‘mandatory

injunction that alters the status quo by commanding a positive

act,’ . . . the burden is even higher.” Id. at *3 (quoting

Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master

Fund, Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010)) (further citations

omitted). A mandatory preliminary injunction

should issue only upon a clear showing that

the moving party is entitled to the relief

requested, or where extreme or very serious

damage will result from a denial of

preliminary relief. In the prison context, a

request for injunctive relief must always be

viewed with great caution so as not to immerse

the federal judiciary in the management of

state prisons.

Id. (internal quotation marks and citations omitted).

First, as stated, Plaintiff may only bring “claims and

request relief on his own behalf, not on behalf of other inmates.”

Gillums v. Semple, No. 18-CV-0947, 2018 WL 3404145, at *3 (D. Conn.

July 12, 2018). Accordingly, Plaintiff “lacks standing to seek a

preliminary injunction on behalf of other inmates in the [BMU or

the Nassau County Correctional Center] because this is not a class

action.” Crichlow v. Fischer, No. 12-CV-7774, 2015 WL 678725, at

*6 (S.D.N.Y. Feb. 17, 2015) (internal quotation marks omitted)

(collecting cases). Specifically, the Court denies Plaintiff’s

requests that the Court direct Defendants to release every person

housed for more than fifteen days in the BMU at the Nassau County

Correctional Center into the general population; and to “provide

all prisoners” and “all officers at N.C.C.C. a mandatory COVID-19

test.” (See Mot.) The Court thus construes Plaintiff’s motion as

requesting an injunction only on behalf of himself.

Second, the Court has considered Plaintiff’s claims and

finds he has not established a likelihood of success on the merits.

Here, Plaintiff argues that he is likely to succeed only on his

Eighth Amendment cruel and unusual punishment claim.4 (See Pl.

Br., ECF No. 4-2, at 5 (arguing “The BMU solitary confinement unit

. . . must evolve with contemporary standards and decency . . . it

is likely that [the] Court will immediately condemn such conditions

and order the facility to undergo fundamental policy changes.”);

id. at 5-6 (arguing prison official’s failure to test for COVID-

19 constitutes unlawful discrimination against prisoners).)

The Eighth Amendment to the U.S. Constitution protects

against the infliction of “cruel and unusual punishments.” U.S.

4 Specifically, Plaintiff argues “[n]o court in this Country will

continue to allow a correction facility to house prisoners in

solitary confinement under conditions that amount to cruel and

unusual punishment.” (Pl. Br. at 5.)

CONST. amend. VIII. “The Supreme Court has long recognized that

prison officials violate the Eighth Amendment if they are

deliberately indifferent to a substantial risk of serious harm to

a sentenced prisoner.” Pagan v. Rodriguez, No. 20-CV-0251, 2020

WL 3975487, at *4 (D. Conn. July 12, 2020) (citing Farmer v.

Brennan, 511 U.S. 825, 847 (1994) and Estelle v. Gamble, 429 U.S.

97, 104-05 (1976)). To “establish an Eighth Amendment claim of

deliberate indifference to safety, a prisoner must show that:

(1) he was subject to conditions of confinement that posed an

objectively serious risk of harm, as distinct from what a

reasonable person would understand to be a minor risk of harm; and

(2) a defendant prison official acted not merely carelessly or

negligently but with a subjectively reckless state of mind akin to

criminal recklessness (i.e., reflecting actual awareness of a

substantial risk that serious harm to the prisoner would result).”

Id. (citations omitted); Darnell v. Pineiro, 849 F.3d 17, 29 (2d

Cir. 2017) (noting that an Eighth Amendment deliberate

indifference claim requires that Plaintiff satisfy two elements:

(1) an “objective” element, which requires a showing that the

challenged conditions are sufficiently serious, and (2) a “mental”

element, which requires a showing that the officer(s) acted with

at least deliberate indifference to the challenged conditions).

Upon review of Plaintiff’s submission, the Court finds

that Plaintiff has not shown a likelihood of success in

demonstrating the “objective” prong. Plaintiff has not

sufficiently alleged that the challenged conditions are

sufficiently serious such that preliminary injunctive relief is

warranted. Although “unsanitary conditions in a prison cell can,

in egregious circumstances, rise to the level of cruel and unusual

punishment,” Walker v. Schult, 717 F.3d 119, 127 (2d Cir. 2013),

Plaintiff complains only that his BMU cell is “dirty” and that he

was provided nothing but “two green blankets, a bar of soap and a

roll of tissue.” (Compl. ¶ 15.) Such allegations do not support

a finding that Plaintiff’s living conditions rise to the level of

cruel and unusual punishment. Indeed, “[p]risoners are entitled

to satisfaction of their basic human needs although ‘comfort within

prisons is not constitutionally required.’” Junior v. Garrett,

No. 19-CV-03788, 2020 WL 7042811, at *5 (E.D.N.Y. Dec. 1, 2020)

(quoting Randle v. Alexander, 960 F. Supp. 2d 457, 470 (S.D.N.Y.

2013) (citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)) (“[T]he

Constitution does not mandate comfortable prisons. . . .”))).

Nor do the allegations that the food in the BMU is

“always served cold” and “everything is dumped on top of one

another” (Compl. ¶ 17) demonstrate a likelihood of success on an

Eighth Amendment violation. Indeed, it is well-established that

“[t]he provision of cold food, is not, by itself, a violation of

the Eighth Amendment as long as it is nutritionally adequate and

is prepared and served under conditions which do not present an

immediate danger to the health and well being of the inmates who

consume it.” Martin v. Oey, No. 16-CV-0717, 2017 WL 6614680, at

*6 (N.D.N.Y. Nov. 28, 2017) (quoting Waring v. Meachum, 175 F.

Supp. 2d 230, 239 (D. Conn. 2001)) (collecting cases).

Further, to the extent LaPierre alleges that the Kitchen

Supervisor is liable because he or she failed respond to the

grievances regarding the food served in the BMU, that claim fails.

To succeed on a claim under Section 1983, a plaintiff must allege

sufficient facts to demonstrate a defendant’s personal involvement

in any alleged constitutional violation. Hernandez v. Keane, 341

F.3d 137, 144–45 (2d Cir.2003). Here, LaPierre alleges that he

“personally [wrote to John Doe Kitchen Supervisor] several times

and not one time has the Kitchen Supervisor writ[ten] back.”

(Compl. ¶ 71.) “That the [Kitchen Supervisor] ignored the

plaintiff’s grievances is insufficient to impose Section 1983

liability, however, as personal involvement will be found only

‘where a supervisory official receives and acts on a prisoner’s

grievance or otherwise reviews and responds to a prisoner’s

complaint.’” Toliver v. Dep’t of Corr., No. 10-CV-6298, 2012 WL

4510635, at *8 (S.D.N.Y. Apr. 10, 2012) (quoting Johnson v. Wright,

234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002)), report and

recommendation adopted, 2012 WL 4513435 (S.D.N.Y. Sept. 30, 2012).

Indeed, while “courts in this Circuit are divided ‘regarding

whether a supervisor who reviews and ultimately denies a grievance

can be considered personally involved in the unconstitutional act

underlying the grievance,’ . . . the law is clear that a

supervisor’s ‘mere receipt of a letter, without personally

investigating or acting on the letter or grievance, is insufficient

to establish personal involvement[.]’” Id. (first quoting Garcia

v. Watts, No. 08-CV-7778, 2009 WL 2777085, at *15 (S.D.N.Y. Sept.

1, 2009); then quoting Harrison v. Fischer, No. 08–CV–1327, 2010

WL 2653629, at *4 (N.D.N.Y. June 7, 2010)) (collecting cases).

Plaintiff makes “no allegation that [the Kitchen Supervisor]

responded to his grievances or took any other action in regard to

his complaints,” and therefore, he does not state a claim against

the Kitchen Supervisor under Section 1983. Id. Thus, Plaintiff’s

claims relating to the living conditions in the BMU have little

likelihood of success on the merits.

Similarly, Plaintiff has not demonstrated a clear or

substantial likelihood of success on the merits insofar as he

argues that a failure to test for COVID-19 constitutes cruel and

unusual punishment in violation of the Eighth Amendment. “[T]here

is no question that an inmate can face a substantial risk of

serious harm in prison from COVID-19 if a prison does not take

adequate measures to counter the spread of the virus.” Chunn v.

Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y. 2020). Indeed,

Courts have long recognized that conditions

posing an elevated chance of exposure to an

infectious disease can pose a substantial risk

of serious harm. Thus, the Supreme Court has

rejected the proposition that prison officials

may “be deliberately indifferent to the

exposure of inmates to a serious, communicable

disease.” Thus, determining whether prison

conditions pose a substantial risk of serious

harm from COVID-19, or any other risk, must be

determined “after accounting for the

protective measures [the prison system] has

taken.”

Id. (alteration in original) (first quoting Helling v. McKinney,

509 U.S. 26, 35-36 (1993); then quoting Valentine v. Collier, 956

F.3d 797, 801 (5th Cir. 2020)).

Although it is unclear from the Complaint whether the

facility tested Plaintiff for COVID-19, the Complaint alleges that

as soon as Plaintiff experienced symptoms, including headache,

shortness of breath, cough, and a loss of taste and smell, he was

isolated from others after “being seen by medical.” (Compl. ¶ 99,

LaPierre Decl., ECF No.4, at ECF p.7, ¶ 12.) These allegations

suggest that the Nassau County Correctional Center implemented

safety measures in response to COVID-19. Accordingly, the

“preliminary injunction record leaves substantial reason to doubt

[that Plaintiff] will ultimately succeed in making” a showing of

a substantial risk of serious harm from COVID-19 at the Nassau

County Correctional Center “in light of countermeasures that the

facility has in place.” Chunn, 465 F. Supp. 3d at 201.

Plaintiff also seeks an order requesting that Defendants

provide him “with all necessary legal material to complete the

attached 1983 civil complaint and legal material necessary to

submit his leave application to the Court of Appeals.” (See, e.g.,

Mot.) To the extent that Plaintiff alleges that he is being denied

access to the courts, “the mere limitation of access to legal

materials, without more, does not rise to the level of a

constitutional violation.” Crichlow v. Fischer, No. 12-CV-7774,

2015 WL 678725, at *7 (S.D.N.Y. Feb. 17, 2015). “[T]o establish

a constitutional violation based on a denial of access to the

courts, a plaintiff must show that the defendant’s conduct was

deliberate and malicious, and that the defendant’s actions

resulted in actual injury to the plaintiff.” Id. (emphasis in

original) (quoting Collins v. Goord, 581 F. Supp. 2d 563, 573

(S.D.N.Y. 2008)) (further citation omitted). “To show actual

injury, the plaintiff must demonstrate that the defendant’s

conduct frustrated the plaintiff’s efforts to pursue a

nonfrivolous claim.” Collins, 581 F. Supp. 2d at 573 (citing Lewis

v. Casey, 518 U.S. 343, 353 (1996)). “To state a claim that his

constitutional right to access the court was violated, plaintiff

must allege facts demonstrating that defendants deliberately and

maliciously interfered with his access to the courts, and that

such conduct materially prejudiced a legal action he sought to

pursue.” Crichlow, 2015 WL 678725, at *7 (quoting Smith v.

O’Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995)) (further citations

omitted). Plaintiff does not address this claim in his moving

papers and “there are, at most, only conclusory suggestions that

the denial was malicious or deliberate.” Id. Further, the Court

takes notice that Plaintiff’s filings total at least 274 pages and

thus, can reasonably infer that he has a pen and sufficient paper

to pursue his claims. In any event, “Plaintiff’s failure to allege

a key element of a denial of access claim means that he cannot

establish a clear or substantial likelihood of success on the

merits.” Id.

Finally, although Plaintiff complains that he does not

have access to a copy machine, he alleges that he was able to send

“this action home to my family and have them make copies and

forward this action to the Court.” (LaPierre Decl. ¶ 20.)

Nonetheless, this claim “cannot support a preliminary injunction”

because “[a]n inmate does not have a constitutional right to free

copies.” Crichlow, 2015 WL 678725, at *7 (stating that “Plaintiff

cannot, as a matter of law, prevail on a claim that the defendants

are unlawfully withholding documents because he cannot afford to

make copies.”) (citing Collins v. Goord, 438 F. Supp. 2d 399, 416

(S.D.N.Y. 2006) (“[A]n inmate has no constitutional right to free

copies and prison regulations that limit access to such copies are

reasonably related to legitimate penological interests.”))).

Given that Plaintiff has not demonstrated a clear or

substantial likelihood of success on his claims, Plaintiff’s

application for a preliminary injunction is DENIED. N. Am. Soccer

League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 45 (2d Cir.

2018) (not considering other preliminary injunction factors when

movant failed to demonstrate substantial likelihood of success in

mandatory injunction case); Fernandez-Rodriguez v. Licon-Vitale,

470 F. Supp. 3d 323, 355 (S.D.N.Y. 2020). Plaintiff remains free

to develop the record further and to renew his requests for

injunctive relief if warranted based on additional facts.

VI. The Request for the Appointment of Counsel is Denied Without

Prejudice

Plaintiff’s request that the Court appoint pro bono

counsel to represent the class because this “class action suit is

too complex for plaintiff Mr. LaPierre to handle” (see Class Cert.

Mot., ECF No. 33, ¶ 5), is DENIED WITHOUT PREJUDICE AND WITH LEAVE

TO RENEW at a later stage in the proceedings. Unlike criminal

defendants, civil litigants do not have a constitutional right to

counsel. See Hickman v. City of New York, No. 20-CV-4603, 2020 WL

6565079, at *2 (S.D.N.Y. Nov. 9, 2020) (citing United States v.

Coven, 662 F.2d 162, 176 (2d Cir. 1981)). However, “[t]he court

may request an attorney to represent any person unable to afford

counsel.” 28 U.S.C. § 1915(e)(1). When deciding whether to

appoint counsel, “the district judge should first determine

whether the indigent’s position seems likely to be of substance.”

Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). “This

means that it appears to the court ‘from the face of the

pleading,’” Hickman, 2020 WL 6565079, at *2 (citation omitted),

that the plaintiff “appears to have some chance of success . . . .”

Hodge, 802 F.2d at 60-61. Where a plaintiff satisfies this

threshold, the Court considers:

the indigent’s ability to investigate the

crucial facts, whether conflicting evidence

implicating the need for cross-examination

will be the major proof presented to the fact

finder, the indigent’s ability to present the

case, the complexity of the legal issues and

any special reason in that case why

appointment of counsel would be more likely to

lead to a just determination.

Hodge, 802 F.2d at 61-62. These factors are not restrictive and

“[e]ach case must be decided on its own facts.” Id. at 61.

Upon due consideration of the facts herein, and

construing the pleadings liberally and interpreting them to raise

the strongest arguments they suggest, see Burgos v. Hopkins, 14

F.3d 787, 790 (2d Cir. 1994), the appointment of counsel is not

warranted at this time. Even assuming Plaintiff meets the

threshold requirements under Hodge, the record reflects that the

legal issues presented by the Complaint are not unduly complex

and, at this juncture, Plaintiff can adequately prosecute his

claims pro se. Indeed, Plaintiff has demonstrated this ability by

filing a Complaint, an Order to Show Cause for a Preliminary

Injunction, a Motion for Class Certification, and a Motion for

Leave to Amend the Complaint. Therefore, Plaintiff’s motion for

appointment of pro bono counsel is DENIED WITHOUT PREJUDICE AND

WITH LEAVE TO RENEW at a later stage in the proceedings, if

warranted at that time. It is Plaintiff’s responsibility to retain

an attorney or continue to pursue this individual action pro se.

See 28 U.S.C. § 1654.

VII. Review of the Complaint under of 28 U.S.C. § 1915(e)(2)

Pursuant to 28 U.S.C. § 1915(e)(2)(B), a court must

dismiss an in forma pauperis action if it “(i) is frivolous or

malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is

immune from such relief.” Further, while 28 U.S.C. § 1915(e)(2)(B)

mandates dismissal on any of the aforementioned grounds, the Court

must construe pro se pleadings liberally, Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the

“strongest [claims] that they suggest,” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation

marks and citations omitted) (emphasis in original).

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 (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 (2009) (citing Twombly, 550 U.S. at 556). The

plausibility standard requires “more than a sheer possibility that

a defendant has acted unlawfully.” Id. 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. (quoting Twombly, 550 U.S. at

555).

Upon review of the Complaint, the Court finds that

Plaintiff’s claims may proceed with the exception that, for the

reasons stated above, Plaintiff’s Eighth Amendment cruel and

unusual punishment claim, denial of access to the Courts claim,

and claims against the John Doe Kitchen Supervisor are DISMISSED

WITHOUT PREJUDICE.

VIII. Leave to Amend is Granted

On or around February 22, 2021, Plaintiff filed a Motion

for Leave to File an Amended Complaint. (Mot. to Amend, ECF No.

32.) While leave to amend is not required at this early stage of

the proceedings, see FED. R. CIV. P. 15(a)(1),5 Plaintiff is GRANTED

leave to file an amended complaint that corrects the deficiencies

noted above within 45 days of the date of this Order. Should

Plaintiff elect to file an Amended Complaint, it shall be clearly

labeled “Amended Complaint” and shall bear the same case number as

identified in this Order, i.e., No. 21-CV-0464(JS)(ARL). The Court

5 Federal Rule of Civil Procedure 15 provides that “[a] party may

amend its pleading once as a matter of course within: (A) 21 days

after serving it, or (B) if the pleading is one to which a

responsive pleading is required, 21 days after service of a

responsive pleading or 21 days after service of a motion under

Rule 12(b), (e), or (f), whichever is earlier.”

takes notice that Plaintiff did not file a proposed Amended

Complaint but submitted a document seeking to add additional

parties to the Complaint. As stated above, Plaintiff may not

assert claims on behalf of anyone other than himself. Further,

because the Amended Complaint will completely replace the original

Complaint, it must include all factual allegations and claims that

Plaintiff seeks to pursue in this case.

PLAINTIFF IS WARNED that if he does not file an Amended

Complaint within 45 days of the date of this Order, the Clerk of

Court shall cause the United States Marshals Service to serve

copies of the Summons, Plaintiff’s original Complaint (ECF No. 1),

and this Order upon Defendants.6

CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED

that Plaintiff LaPierre’s application proceed in forma pauperis

(ECF No. 2) is GRANTED; and

IT IS FURTHER ORDERED that Plaintiff’s application

pursuant to Federal Rule of Civil Procedure 65 for preliminary

injunctive relief (ECF No. 4) is DENIED; and

6 Plaintiff names two John Does, the “Grievance Supervisor” and

the “Kitchen Supervisor”; however, in the absence of any further

identifying information, summonses will not be issued for these

Defendants. If their identities can be readily obtained during

the course of discovery, then leave to amend the Complaint to

include such individuals may be sought.

IT IS FURTHER ORDERED that

(a) this action shall proceed with Plaintiff LaPierre

as the sole Plaintiff;

(b) claims brought by Plaintiffs Padilla, Treasure,

Martinez, Cullal, Chacon, and Herndez are DISMISSED

WITHOUT PREJUDICE for failure to prosecute pursuant

to Federal Rule of Civil Procedure 41(b); and

(c) claims asserted by Scully, Thomas, Trent, Taveras,

and Witts are DISMISSED WITHOUT PREJUDICE to each

individual refiling separate actions. If either

Scully, Thomas, Trent, Taveras, and/or Witts wish

to pursue their claims, they must each commence a

new action by filing a separate, signed complaint;

and

IT IS FURTHER ORDERED that the motion for class

certification (ECF No. 33) is DENIED and the request for the

appointment of pro bono counsel is DENIED without prejudice and

with leave to renew at a later stage in these proceedings, if

warranted; and

IT IS FURTHER ORDERED that Plaintiff’s claims may

proceed except that Plaintiff’s Eighth Amendment cruel and unusual

punishment claim, denial of access to the Courts claim, and claims

against the John Doe Kitchen Supervisor are DISMISSED WITHOUT

PREJUDICE; and

IT IS FURTHER ORDERED that Plaintiff’s motion for leave

to file an Amended Complaint (ECF No. 32) is GRANTED and Plaintiff

may file an amended complaint within 45 days of the date of this

Order that corrects the deficiencies noted above. Any Amended

Complaint shall be clearly labeled “Amended Complaint,” shall bear

the same case number as identified in this Order, No. 21-CV-

0464(JS)(ARL), and must be signed by the Plaintiff; and

IT IS FURTHER ORDERED that if Plaintiff does not file an

Amended Complaint within 45 days from the date of this Order, the

Clerk of Court shall cause the United States Marshals Service to

serve copies of the Summonses, Plaintiff’s original Complaint (ECF

No. 1), and this Order upon Defendants; and

IT IS FURTHER ORDERED that the Clerk of the Court shall

mail a copy of this Order to the pro se Plaintiffs at their last

known address, with the notation “Legal Mail” on the mailing

envelope;7 and

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

7 It is likely that mail sent Padilla and Treasure will be returned

to the Court. However, this Order is posted to the Court’s

Electronic Case Filing system and may be viewed there.

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §

1915(a)(3), the Court certifies 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 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT _

Joanna Seybert, U.S.D.J.

Dated: March 17 , 2021

Central Islip, New York