# Lapierre v. Dzurenda

> District Court, E.D. New York · March 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10305850

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305850

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305850. Public record. Not legal advice.