McCloud v. Nassau County Sheriff's Department Division of Corrections

UNITED STATES DISTRICT COURT For Online Publication Only

EASTERN DISTRICT OF NEW YORK

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PHILLIP MCCLOUD,

Plaintiff,

ORDER

-against- 20-CV-01757 (JMA)(ARL)

FILED

NASSAU COUNTY SHERIFF’S DEPARTMENT, CLERK

DIVISION OF CORRECTIONS (PRISON);

SHERIFF AT NASSAU COUNTY CORRECTIONAL 3:28 pm, May   13, 2021

CENTER, WATCH COMMANDER, CORPORAL U.S. DISTRICT COURT

OF HOUSING UNIT, CORRECTIONS OFFICER EASTERN DISTRICT OF NEW YORK

(ASSIGNED TO POST AT THE TIME), LONG ISLAND OFFICE

Defendants.

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AZRACK, United States District Judge:

On April 9, 2020, incarcerated pro se plaintiff Phillip McCloud (“Plaintiff”) commenced

this action against the Nassau County Sheriff’s Department, Division of Corrections (Prison) (“the

Jail”); the Sheriff at Nassau County Correctional Center (“Sheriff”), the Watch Commander, the

Corporal of Housing Unit, and a Corrections Officer (assigned to post at the time) (collectively,

“Defendants”) pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging a deprivation of his

constitutional rights. Plaintiff did not remit the Court’s filing fee, nor did he file an application

to proceed in forma pauperis when he filed the complaint. Accordingly, by Notice of Deficiency,

also dated April 9, 2020, plaintiff was instructed to, with fourteen (14) days, either remit the filing

fee or to complete and return the enclosed application to proceed in forma pauperis together with

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the required Prisoner Litigation Authorization form (“PLRA”). On April 27, 2020, plaintiff filed

an application to proceed in forma pauperis together with the PLRA.

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Upon review of the declarations accompanying plaintiff’s application to proceed in forma

pauperis, the Court finds that plaintiff’s financial status qualifies him to commence this action

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without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1). Accordingly, the Court grants

plaintiff’s application to proceed in forma pauperis and sua sponte dismisses the complaint

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) for the reasons that follow.

I. BACKGROUND1

Plaintiff’s brief, handwritten complaint is submitted on the Court’s Section 1983 complaint

form. In its entirety, Plaintiff’s statement of claim alleges that, on March 22, 2020 at 4:20 in Unit

E-1-A at the Nassau County Correctional Center:2

When officers left their post at mealtime I was stabbed by an unknown object, thing

(weapon) in the left forearm. After making the officer aware of my wounds I was

taken to an outside hospital by officers due to the seriousness of the wounds.

(Compl. & II.) Plaintiff claims that he

had a 10-15 inch length to 4-5 inch deep stab wound to my left forearm. I was

taken to an outside hospital and given 19 stitches 8 of which was under the skin to

lessen the width so the outside skin would come together without any further

complications. I now have permanent nerve damage, stiffness, numbness down

my left forearm and I can’t move my fingers. Request for physical therapy non

was given.

(Id. ¶ II.A.) For relief, plaintiff seeks to recover a monetary award in the sum of two million

dollars. (Id. ¶ III.)

II. DISCUSSION

A. In Forma Pauperis Application

Upon review of plaintiff=s declaration in support of the application to proceed in forma

1 All 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).

2 Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling,

punctuation and grammar have not been corrected or noted.

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pauperis, the Court finds that plaintiff is qualified to commence this action without prepayment of

the filing fee. 28 U.S.C. ' 1915(a)(1). Therefore, plaintiff=s application to proceed in forma

pauperis is granted.

B. 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 the 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

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is plausible on its face.” Bell Atlantic 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) (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).

C. Federal Rule of Civil Procedure 8

Federal Rule of Civil Procedure 8 requires a plaintiff to provide “a short and plain statement

of the claim showing that the pleader is entitled to relief” against each defendant named so that

they have adequate notice of the claims against them. Fed. R. Civ. P. 8(a)(2), see Iqbal, 556

U.S. at 678 (holding that Rule 8 “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation”). The purpose of Rule 8 “is to give fair notice of the claim being asserted

so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate

defense and determine whether the doctrine of res judicata is applicable. Powell v. Marine

Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (internal quotation marks and citation omitted).

A pleading that only tenders naked assertions devoid of further factual enhancement” will not

suffice. Id. (internal citations and alterations omitted). A court may dismiss a complaint that

is “so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well

disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

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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. Section 1983 “is not itself a source of substantive rights, but a method for

vindicating federal rights elsewhere conferred by those parts of the United States Constitution and

federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Thomas v.

Roach, 165 F.3d 137, 142 (2d Cir. 1999). In order to state a § 1983 claim, a plaintiff must allege

two essential elements. First, the conduct challenged must have been “committed by a person

acting under color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting

Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan,

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526 U.S. 40, 50 (1999) (“[T]he under-color-of-state-law element of § 1983 excludes from its reach

merely private conduct, no matter how discriminatory or wrongful.”) (internal quotation marks

and citation omitted). Second, “the conduct complained of must have deprived a person of rights,

privileges or immunities secured by the Constitution or laws of the United States.” Id.; see also

Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

Moreover, in an action brought pursuant to § 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 470, 484 (2d Cir. 2006)). 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). An “individual cannot be

held liable for damages under Section 1983 ‘merely because he held a high position of authority.’”

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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)). Rather, as the Second Circuit Court of Appeals

recently made clear, “there is no special rule for supervisory liability” and, in order “[t]o hold a

state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying

constitutional violation directly against the official without relying on a special test for supervisory

liability.” Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020) *7 (2d Cir. 2020).

1. Section 1983 Claims Against the Jail

Plaintiff names the Jail as a defendant. However, the Jail is a non-suable entity because it

is merely an administrative arm of the municipality, Nassau County. “Under New York law,

departments that are merely administrative arms of a municipality do not have a legal identity

separate and apart from the municipality and, therefore, cannot sue or be sued.” Rose v. Cnty. of

Nassau, 904 F. Supp. 2d 244, 247 (E.D.N.Y. 2012) (citing Hall v. City of White Plains, 185 F.

Supp. 2d 293, 303 (S.D.N.Y. 2002)); Carthew v. Cnty. of Suffolk, 709 F. Supp. 2d 188, 195

(E.D.N.Y. 2010); see also Sturgis v. Suffolk Cnty. Jail, 12-CV-5263, 2013 WL 245052, *2

(E.D.N.Y. Jan. 22, 2013) (sua sponte dismissing Section 1983 claims because “the Jail and SCPD

are administrative arms of the County of Suffolk [ ] [and] lack the capacity to be sued.”); see also

Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (dismissing claim

against the local police department because, as an “administrative arm of a municipality [, it] do[es]

not have legal identity separate and apart from the municipality, and therefore, cannot sue or be

sued.”). Therefore, Plaintiff’s claims against the Jail are implausible and are thus dismissed

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). However, given Plaintiff’s pro se

status, the Court considers next whether Plaintiff has alleged a plausible Section 1983 claim when

construed as against Nassau County. For the reasons that follow, he has not.

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2. Section 1983 Claim as Construed Against Nassau County

It is well-established that a municipality, such as Nassau County, may be liable under

Section 1983 only if the “plaintiff proves that action pursuant to official . . . policy of some nature

caused a constitutional tort.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658

(1978); see also Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004). Thus, to impose

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liability on a municipality, the plaintiff must prove that a municipal policy or custom caused a

deprivation of the plaintiff’s rights. See Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125,

137 (2d Cir. 1999).

To establish the existence of a municipal policy or custom, the plaintiff must allege: (1) the

existence of a formal policy officially endorsed by the municipality; (2) actions taken or decisions

made by an official with final decision making authority; (3) a practice so persistent and

widespread that it constitutes a custom; or (4) a failure by policymakers to properly train or

supervise their subordinates, amounting to a “deliberate indifference” to the rights of those who

come in contact with the municipal employees. Davis, 224 F. Supp. 2d at 478; Moray v. City of

Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (citations omitted). “[A] single incident in a

complaint, especially if it involved only actors below the policy making level, does not suffice to

show a municipal policy.” DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (internal quotation

marks and citation omitted).

Here, as is readily apparent, even affording the pro se complaint a liberal construction,

there are simply no factual allegations from which the Court may reasonably infer that the conduct

or inaction of which Plaintiff complains was caused by some policy or custom of Nassau County.

Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (“[A] plaintiff must allege

facts tending to support, at least circumstantially, an inference that such a municipal policy or

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custom exists.”). Accordingly, Plaintiff has not alleged a plausible Section 1983 claim even when

construing the complaint as against Nassau County.

3. Claims Against the Sheriff, the Watch Commander, the Corporal of the

Housing Unit, and the Corrections Officer Assigned to Post

As discussed above, a § 1983 claim that does not allege the personal involvement of a

defendant fails as a matter of law. Johnson, 360 F. App’x at 201. Although Plaintiff seeks to

impose liability on the Sheriff, the Watch Commander, the Corporal of the Housing Unit, and the

Corrections Officer Assigned to Post as defendants, the complaint contains no allegations or

references to any of these individuals and, accordingly, Plaintiff has not alleged a viable § 1983

claim against any of these defendants. Indeed, the entirety of Plaintiff’s allegations concerning

these individuals consists of the following three sentences:

When officers left their post at mealtime I was stabbed by an unknown object, thing

(weapon) in the left forearm. After making the officer aware of my wounds I was

taken to an outside hospital by officers due to the seriousness of the wounds.

(Compl. ¶ II.) Given the absence of any allegations of conduct or inaction attributable to the

Sheriff, the Watch Commander, the Corporal, or the Corrections Officer Assigned to Post,

Plaintiff’s claims against them are implausible and are therefore dismissed without prejudice

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

Moreover, Plaintiff’s complaint fails to allege any plausible deliberate indifference

claims against the officers discussed in the excerpt from the complaint above. As a threshold

matter, plaintiff does not allege whether he is a pretrial detainee or a convicted prisoner. When

brought by pretrial detainees, deliberate indifference claims “are governed by the Due Process

Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of

the Eighth Amendment,” because “pretrial detainees have not been convicted of a crime and thus

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may not be punished in any manner—neither cruelly and unusually nor otherwise.” Darnell v.

Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (internal quotation marks omitted). A deliberate

indifference claim, whether brought pursuant to the Eighth or Fourteenth Amendment, requires

that “the alleged deprivation of adequate medical care must be sufficiently serious” and that “the

defendant must act with a sufficiently culpable state of mind.” See Hong v. Aigle, 18-CV-8110,

2020 WL 2836309, at *3 (S.D.N.Y. June 1, 2020) (internal quotation marks and citation omitted).

“The serious medical needs standard contemplates a condition of urgency such as one that may

produce death, degeneration, or extreme pain.” Charles v. Orange County, 925 F.3d 73, 86 (2d

Cir. 2019). With regard to the second prong, the standard for assessing whether the defendant’s

state of mind is sufficiently culpable is different depending upon which amendment applies to

plaintiff’s claim. The Second Circuit instructs that a “pretrial detainee must prove that the

defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act

with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even

though the defendant-official knew, or should have known, that the condition posed an excessive

risk to health or safety.” Darnell, 849 F.3d at 35; see also Charles, 925 F.3d at 86 (applying the

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same principle to medical treatment, the Second Circuit clarified that “[d]eliberate indifference . .

. can be established by either a subjective or objective standard: A plaintiff can prove deliberate

indifference by showing that the defendant official ‘recklessly failed to act with reasonable care to

mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official

knew, or should have known, that the condition posed an excessive risk to [the plaintiff's] health

or safety” (quoting Darnell, 849 F.3d at 35)). In contrast, the defendant’s state of mind will be

sufficiently culpable for an Eighth Amendment deliberate indifference claim where “the

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defendants must have been actually aware of a substantial risk that the plaintiff would suffer

serious harm as a result of their action or inaction and disregarded that risk.” Christensen v.

Gadanski, 19-CV-1927, 2020 WL 509693, at *3 (D. Conn. Jan. 31, 2020) (citing Salahuddin v.

Goord, 467 F.3d 263, 280-81 (2d Cir. 2006).

Even affording the pro se complaint a liberal construction and applying the “more lenient

standards of the Fourteenth Amendment”, Jimenez v. City of New York, 18-CV-7273, 2020 WL

1467371, at *3 (S.D.N.Y. Mar. 26, 2020), plaintiff’s sparse complaint does not sufficiently allege

any plausible deliberate indifference claims. Wholly absent are any factual allegations from

which the Court could reasonably construe satisfaction of the second prong of a deliberate

indifference claim. Accordingly, plaintiff’s deliberate indifference claims are implausible and

thus is dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(ii), 1915A(b).

E. State Law Claims

Given the nature of plaintiff’s allegations, it appears that plaintiff also seeks to allege state

law negligence claims. Given the dismissal of plaintiff’s federal claims, the Court declines to

exercise supplemental jurisdiction over any state law claims in the complaint and dismisses them

without prejudice. 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise

supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over

which it has original jurisdiction. . . .”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance

of factors to be considered under the pendent jurisdiction doctrine - - judicial economy,

convenience, fairness, and comity - - will point toward declining to exercise jurisdiction over the

remaining state-law claims.”).

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F. Leave to Amend

A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo

v. City of New York, 579 F.3d 176 (2d Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks omitted)). Yet while “pro se plaintiffs

are generally given leave to amend a deficient complaint, a district court may deny leave to amend

when amendment would be futile.” Id. (citations omitted).

Here, in an abundance of caution, the Court grants Plaintiff thirty (30) days to amend his

complaint to properly state a claim. Should Plaintiff choose to file an amended complaint, the

amended complaint must identify3 the individual defendants who are responsible for any

deprivation of his constitutional rights and allege facts identifying how each defendant was

personally involved in any such deprivation. Plaintiff is advised that an amended complaint

replaces the original complaint in its entirety and therefore must include all of relevant claims and

factual allegations against the defendants in a single submission. The amended complaint must

be captioned as an “Amended Complaint,” and bear the same docket number as this Order, 20-

CV-1757(JMA)(ARL). If submitted, any amended complaint will be reviewed for compliance

with this Order and for sufficiency under Fed. R. Civ. P. 8 and 28 U.S.C. § 1915A. Should

Plaintiff choose to prepare an amended complaint, he should carefully consider this Order and

amend his claims accordingly.

3 If plaintiff does not know the name(s) of the individuals whom he seeks to hold liable, he may continue to include

them as John Doe and Jane Doe defendants. However, plaintiff must include some factual information describing

any such individual, including when and how their action or inaction violated plaintiff’s rights, such that their identities

may be ascertained.

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If Plaintiff again fails to plead sufficient facts in his amended complaint, or if he fails to

file an amended complaint within thirty (30) days, he will not have another opportunity to re-plead,

and the Court will enter judgment.

III. CONCLUSION

For the forgoing reasons, the Plaintiff’s application to proceed in forma pauperis is granted.

However, Plaintiff’s complaint is dismissed sua sponte in its entirety pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief. Plaintiff is granted leave

to file an amended complaint in accordance with this Order. Any amended complaint must be

clearly labeled “Amended Complaint,” bear the same docket number as this Order, 20-CV-

1757(JMA)(ARL), and shall be filed within thirty (30) days from the date of this Order. Plaintiff

is cautioned that an amended complaint completely replaces the original. Therefore, Plaintiff

must include all claims against any defendants he seeks to pursue in the amended complaint. If

Plaintiff does not file an amended complaint within the time allowed, judgment shall enter and this

case will be closed.

Given the dismissal of Plaintiff’s complaint, his application for the appointment of pro

bono counsel is denied without prejudice and with leave to renew upon filing an amended

complaint in accordance with this Order.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and therefore in forma pauperis status is denied for the purpose

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

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

SO ORDERED. ______/s/ (JMA)_______________

Joan M. Azrack

Dated: May 13, 2021 United States District Judge

Central Islip, New York

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