Porter v. Family Service League

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JASON PORTER,

Plaintiff,

MEMORANDUM & ORDER

-against- 21-CV-5120(JS)(ARL)

FAMILY SERVICE LEAGUE,

MICHELLE NAVAREZ, Family Service

League Director;

Defendants.

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APPEARANCES

For Plaintiff: Jason Porter, pro se

332580

Suffolk County Correctional Facility

110 Center Drive

Riverhead, New York 11901

For Defendants: No appearances.

SEYBERT, District Judge:

On or around September 13, 2021, pro se plaintiff Jason

Porter (“Plaintiff”) commenced this action while incarcerated at

the Suffolk County Correctional Facility by filing a Complaint

pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the Family

Service League (the “League”) and Michelle Narvaez (“Narvaez”),

who is alleged to be the League’s Director (collectively,

“Defendants”). (Compl., ECF No. 1, ¶ I.B.) Plaintiff filed an

application to proceed in forma pauperis (“IFP”) along with his

Complaint. (IFP App., ECF No. 2.) For the reasons that follow,

Plaintiff’s IFP application is GRANTED; however, the Complaint is

DISMISSED for failure to allege a plausible claim for relief.

BACKGROUND

Plaintiff’s sparse Complaint is submitted on the Court’s

form complaint for Civil Rights actions under Section 1983 with an

additional two pages of attachments. (See generally Compl.) In

its entirety, Plaintiff alleges that, on or about January 23, 2021

at 16 Pineaire Drive in Brentwood, New York1:

The plaintiff contends that Family Service League

contributed its negligence of its staff at their 16

Pineaire Dr. location for failing to properly train them

in CDC and health and measures for when after South Side

Hospital officials contacted Family Service League and

the staff at 16 Pineaire Dr. Brentwood NY, 11717 and

informed them that [BH2] a resident at 16 Pineaire Dr.

location was at their hospital under their care and

tested positive for COVID-19. Family Service League

still did not require the staff or residents at the 16

Pineaire Dr. location to be retested to insure that no

one at that location, staff or residents had contracted

the COVID-19 virus due to current resident testing

positive for the virus. This failure left the residents

of 16 Pineaire Dr. at risk of even greater danger and

this negligence deliberately indiffered everyone

residing within the location, residents and staff.

Farmer v. Brennan 511 US 834 Wright v. Smith 21 F3D 496.

Gross negligence is defined as an intentional or willful

failure to perform a clear duty recklessly disregarding

the consequences or injury to a person that that attends

such failure for on 1/23/21, the Plaintiff was placed at

1 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.

2 Although Plaintiff included this individual’s full name, the

Court will use only this individual’s initials in accordance with

the E-Government Act. The Clerk of the Court shall restrict access

to the Complaint to only the parties and Court users and shall

include a copy of the Court’s summary of the E-Government Act with

this Memorandum and Order when mailing it to Plaintiff. Plaintiff

is cautioned that he must comply with the provisions of the E-

Government Act in all future filings with the Court.

16 Pineaire Dr. Brentwood NY 11717, a Family Service

League location by Suffolk County Emergency housing

authority. After residing at said residence for

approximately 2 weeks, a resident that had been residing

at said residence prior to the Plaintiff being placed at

said residence was rushed to the hospital after an

epileptic attack when at which time it was discovered

that BH was positive for COVID-19 and had been affected

for several months.

(Compl. at ECF pp. 6-7.) In the space on the form Complaint that

calls for a description of any injuries suffered and/or any medical

treatment needed and/or received, Plaintiff responded: “Stress,

Mental Anguish, and fear of catching COVID-19.” (Id. ¶ II.A.)

For relief, Plaintiff seeks to recover a monetary award in the sum

of $2 million. (Id. ¶ III.)

DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

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

IFP application is GRANTED.

II. Legal Standards

A. Consideration of the Complaint Under 28 U.S.C. §§ 1915,

1915A

Section 1915 requires a district court to dismiss an in

forma pauperis complaint if the action is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief.

See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b). An action is

frivolous as a matter of law when, inter alia, it is based on an

“indisputably meritless legal theory” or when it “lacks an arguable

basis in law . . . or [when] a dispositive defense clearly exists

on the face of the complaint.” Livingston v. Adirondack Beverage

Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court is required to

dismiss the action as soon as it makes such a determination. See

28 U.S.C. § 1915A; Avant v. Miranda, No. 21-CV-0974, 2021 WL

1979077, at *2 (E.D.N.Y. May 18, 2021).

Courts are obliged to construe the pleadings of a pro se

plaintiff liberally and to interpret them to raise the “strongest

[claims] that they suggest.” Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006) (cleaned up); Harris v. Mills,

572 F.3d 66, 72 (2d Cir. 2009). However, the 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) (citations omitted). 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

557). Further, a pleading that only “tenders naked assertion[s]

devoid of further factual enhancement” will not suffice. Id. at

678 (internal quotation marks and citation omitted). And 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);

Tawfik v. Georgatos, No. 20-CV-5832, 2021 WL 2953227, at *2

(E.D.N.Y. July 14, 2021) (Seybert, J.).

B. Section 1983

Section 1983 provides that:

Every 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. To state a claim under Section 1983, a plaintiff

must “allege that (1) the challenged conduct was attributable at

least in part to a person who was acting under color of state law

and (2) the conduct deprived the plaintiff of a right guaranteed

under the Constitution of the United States.” Rodriguez v.

Shoprite Supermarket, No. 19-CV-6565, 2020 WL 1875291, at *2

(E.D.N.Y. Apr. 15, 2020) (internal quotation marks and citation

omitted). In addition, “personal involvement of defendants in

alleged constitutional deprivations is a prerequisite to an award

of damages under § 1983.” Brandon v. Kinter, 938 F.3d 21, 36 (2d

Cir. 2019) (citation and quotations omitted). To establish

personal involvement under Section 1983, the plaintiff must “plead

and prove ‘that each Government-official defendant, through the

official’s own individual actions, has violated the

Constitution,’” that is, personally participated in the alleged

constitutional deprivation. Tangreti v. Bachmann, 983 F.3d 609,

618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 675).

III. Application of 28 U.S.C. §§ 1915, 1915A

Applying these standards to Plaintiff’s Complaint, even

with the special solicitude afforded to pro se pleadings, it is

readily apparent that Plaintiff’s Section 1983 claims are not

plausible.

A. Personal Involvement

Wholly absent from Plaintiff’s submission are any

allegations establishing how the individual Defendant, Narvaez, is

personally involved. Indeed, Plaintiff has not alleged any facts

demonstrating how Narvaez’s conduct or inaction caused the

constitutional violation at issue. Rather, she is referenced only

in the caption and in the “Parties” section of the Complaint. (See

generally Compl.) In the absence of any such allegations,

including how her conduct or inaction violated Plaintiff’s

constitutional rights, Plaintiff’s Complaint must be dismissed.

Moultrie v. Wright, No. 21-CV-3925, 2021 WL 3372031, at *4

(S.D.N.Y. Aug. 3, 2021) (citing Spavone v. N.Y. State Dep’t of

Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled

in this Circuit that personal involvement of defendants in the

alleged constitutional deprivations is a prerequisite to an award

of damages under § 1983.”)).

Moreover, insofar as Plaintiff seeks to impose

supervisory liability on this Defendant given her alleged position

as Director at the League, there is “no special test for

supervisory liability.” Tangreti, 983 F.3d at 616. As the Second

Circuit recently made clear, 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.” Id. at 620. Accordingly, the Complaint is DISMISSED

as against Narvaez pursuant to 28 U.S.C. §§ 1915(e)(2)(B),

1915A(b).

B. Absence of a Constitutional Deprivation

As noted above, a plausible Section 1983 claim requires

the deprivation of a constitutional right by a state actor. Here,

Plaintiff alleges only that the League was “negligent” in housing

Plaintiff with another individual who later tested positive for

the COVID-19 virus. (See Compl. at ECF pp. 6-7). However,

Plaintiff does not allege that he too contracted the virus, and,

in fact, alleges only that he “fear[ed] catching COVID-19.” (Id.

¶ II.A.) Insofar as Plaintiff attempts to allege a deliberate

indifference claim under the Eighth or Fourteenth Amendments, his

allegations are insufficient to allege a plausible claim for the

reasons that follow.

As this Court recently stated in LaPierre v. Dzurenda,

No. 21-CV-0464, 2021 WL 1062287, at *5 (E.D.N.Y. Mar. 17, 2021):

The Eighth Amendment to the U.S. Constitution protects

against the infliction of “cruel and unusual

punishments.” U.S. 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).

Although deliberate indifference claims of sentenced inmates are

considered under the Eighth Amendment, claims of pretrial

detainees are considered under the Fourteenth Amendment. Darnell,

849 F.3d at 29. To state a deliberate indifference to health and

safety claim under the Fourteenth Amendment, a plaintiff must

allege facts in satisfaction of two prongs: (1) an “objective

prong” showing that the plaintiff’s condition of confinement posed

an unreasonable risk of serious harm to the plaintiff, and (2) a

“mens rea prong” showing that the state actor’s conduct amounts to

deliberate indifference to that objectively serious risk of harm.

Id. at 29; Charles v. Orange County, 925 F.3d 73, 86 (2d Cir.

2019).

Here, Plaintiff does not allege whether he is a convicted

prisoner or a pretrial detainee. Regardless, his sparse

allegations make clear that he has not alleged a plausible claim,

whether brought pursuant to the Eighth or Fourteenth Amendments.

Specifically, even assuming Plaintiff’s conditions of confinement

posed an objectively serious risk of harm to him, Plaintiff has

not pleaded sufficient facts to render plausible his claim that

Defendant’s conduct constituted deliberate indifference to an

objectively serious risk of harm to him. To the contrary,

Plaintiff alleges Defendant acted negligently. This is

insufficient. Darnell, 849 F.3d at 36. Accordingly, Plaintiff’s

deliberate indifference claims are DISMISSED pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1).3

3 Moreover, it is far from clear that the Defendants are state

actors. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d

C. State Law Claims

Plaintiff also seeks to allege state law negligence

claims. However, “Section 1983 provides a cause of action for

deprivation of federal, and not state, rights.” Morton v. County

of Erie, 335 F. Supp. 3d 449, 455 n.2 (W.D.N.Y. Sept. 26, 2018)

aff’d, 796 F. App’x 40 (2d Cir. 2019) (summary order). Given the

dismissal of Plaintiff’s federal claims, the Court declines to

exercise supplemental jurisdiction over any state law claims 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

Cir. 2002) (“In order to state a claim under § 1983, a plaintiff

must allege that he was injured by either a state actor or a

private party actin under color of state law. Because the United

States Constitution regulates only the Government, not private

parties, a litigant claiming that his constitutional rights have

been violated must first establish that the challenged conduct

constitutes ‘state action.’” (internal citations omitted)).

Plaintiff does not allege any facts suggesting that Defendants are

state actors, and it appears that the League is a private social

services agency. The Court need not reach this question given

that Plaintiff’s claims are not plausible for the reasons set forth

above.

over the remaining state-law claims.”). Plaintiff may pursue any

valid state law claims, including negligence, in state court.

IV. Leave to Amend

Given the Second Circuit’s guidance that a pro se

complaint should not be dismissed without leave to amend unless

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

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

to amend is warranted. Here, Plaintiff is GRANTED leave to file

an Amended Complaint in accordance with the Federal Rules of Civil

Procedure and the guidance set forth herein within 30 days from

the date of this order. Any Amended Complaint shall be clearly

labeled “Amended Complaint” and shall bear the same Docket Number

as this Order, 21-CV-5120(JS)(ARL). 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 30 days from the date of this Order, judgment

will enter and this case will be dismissed.

CONCLUSION

For the reasons stated, IT IS HEREBY ORDERED that

Plaintiff’s IFP application (ECF No. 2) is GRANTED; and

IT IS FURTHER ORDERED that Plaintiff’s claims are

DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A; and

IT IS FURTHER ORDERED that Plaintiff is GRANTED LEAVE TO

FILE AN AMENDED COMPLAINT, in accordance with the guidance set

forth above, within 30 days from the date of this Order. Any

Amended Complaint shall be clearly labeled “Amended Complaint” and

shall bear the same case number as identified in this Order, No.

21-CV-5120(JS)(ARL). Plaintiff is WARNED that if he does not file

an Amended Complaint within 30 days from the date of this Order,

judgment will enter and this case will be dismissed; and

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

1915(a)(3), 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); and

IT IS FURTHER ORDERED that the Clerk of the Court shall

(1) restrict access to the Complaint to only the parties and Court

users, and (2) mail a copy of this Memorandum & Order to the pro

se Plaintiff, along with a copy of the Court’s summary of the E-

Government Act, at his address of record and include the notation

“Legal Mail” on the envelope.

SO ORDERED.

/s/ JOANNA SEYBERT________

Joanna Seybert, U.S.D.J.

Dated: November 16 , 2021

Central Islip, New York