Porter v. Toulon Jr.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JASON PORTER,

Plaintiff,

MEMORANDUM & ORDER

-against- 21-CV-4037(JS)(ARL)

ERROL D. TOULON, JR. (Sheriff),

Defendant.

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JASON PORTER,

Plaintiff,

-against- 21-CV-5728(JS)(ARL)

ERROL D. TOULON, JR.,

Defendant.

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JASON PORTER,

Plaintiff,

-against- 21-CV-5832(JS)(ARL)

ERROL D. TOULON, JR.,

Defendant.

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APPEARANCES

For Plaintiff: Jason Porter, pro se

19-A-3761

Downstate Correctional Facility

121 Red Schoolhouse Road

P.O. Box F

Fishkill, New York 12524

For Defendants: No appearances.

SEYBERT, District Judge:

Presently before the Court are three Complaints brought

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

County Sheriff Errol D. Toulon, Jr. (“Sheriff Toulon” or

“Defendant”) filed by Jason Porter (“Plaintiff”) while he was

incarcerated at the Suffolk County Riverhead Correctional

Facility.1 (Compls., ECF No. 1.)2 Plaintiff filed an application

to proceed in forma pauperis (“IFP”) along with each Complaint.

(IFP Apps., ECF No. 2.) For the reasons that follow, Plaintiff’s

IFP applications are GRANTED; the three actions are hereby

CONSOLIDATED; however, the Complaints are DISMISSED for failure to

allege a plausible claim for relief.

BACKGROUND

Each of Plaintiff’s sparse Complaints are submitted on

the Court’s form complaint for civil rights actions under Section

1983 with additional pages of attachments. (See generally Compls.)

Plaintiff seeks to impose liability on Defendant based on his

supervisory role as Suffolk County Sheriff in light of three

discrete incidents at the Riverhead Correctional Facility, as

1 On November 8, 2021, Plaintiff filed a Notice of Change of Address

indicating that he had been transferred to Downstate Correctional

Facility. (See, e.g., No. 21-CV-5728, ECF No. 8.) Accordingly,

Plaintiff’s address has been updated in each case.

2 Given that the ECF entry numbers in each docket are the same,

the Court’s citation applies to each case.

alleged in each of Plaintiff’s Complaints.

21-CV-4037: Plaintiff alleges that Defendant is liable

for “contributory negligence” following Plaintiff’s suicide

attempt while Plaintiff was on “suicide watch.” (Compl. at 6.)

According to the Complaint, although “mental health staff” placed

Plaintiff on suicide watch, he managed to attempt to hang himself

in his cell using a bath towel. (Id.) Plaintiff alleges that the

officer who was responsible for watching Plaintiff was “off his

post and totally unprepared” for this situation. (Id.) Plaintiff

further alleges that when the officer returned, he cut Plaintiff

down and Plaintiff was taken to Peconic Bay Medical Center “where

he fortunately regained consciousness several hours later.” (Id.)

As a result, Plaintiff alleges that he was subjected to cruel and

unusual punishment in violation of his Eighth Amendment rights.

(Id. at 6-7.) Plaintiff further claims that the Defendant’s

unspecified “faulty training methods” demonstrate a deliberate

indifference to Plaintiff’s declining mental health for which he

seeks to recover a monetary award in the sum of $2 million.3 (Id.

at 5, 7.)

21-CV-5728: Plaintiff alleges that Defendant, in his

“supervising position,” failed to protect Plaintiff “from

3 Plaintiff’s only claimed injuries are “brain trauma” and “PTSD”

which Plaintiff alleges are “now aided by psychotropic

medications.” (Id. at 4, ¶ II.A.)

dangerous situations within the facility.” (Compl. at 6.)

Specifically, Plaintiff claims that, on September 14, 2021, he was

exposed to the COVID-19 virus when an inmate on his tier tested

positive. (Id.) According to the Complaint, four inmates have

tested positive for COVID-19,4 and Plaintiff surmises that the

medical staff’s “negligen[ce] may be do [sic] in part to faulty

training methods and the lack of knowledge of C.D.C[.] testing

regulations.” (Id.) Plaintiff does not claim to have contracted

COVID-19. Rather, his alleged injuries are: “Stress, mental

anguish” and an “increase in his blood pressure medication.” (Id.

at 4, ¶ II.A.) For relief, Plaintiff seeks to recover a monetary

award in the sum of $2 million. (Id. at 5, ¶ III.)

21-CV-5832: Plaintiff alleges that Defendant’s

“contributory negligence” deprived Plaintiff of his right to be

free from cruel and unusual punishment as protected by the Eighth

and Fourteenth Amendments. (Compl. at 6.) Plaintiff also claims

an unspecified deprivation of his rights under the Sixth Amendment.

(Id.) According to the Complaint, following Plaintiff’s June 17,

2021 arrest, the mental health staff at the Riverhead Correctional

4 Plaintiff has included the full names of the inmates who allegedly

tested positive for the COVID-19 virus. 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.

Facility did not “contact Mental Hygiene Legal Services to ensure

that Plaintiff’s rights are protected.” (Id.) As a result,

Plaintiff claims to have suffered “[a]dded mental anguish, stress

and an increase in psychotropic medication,” for which he seeks to

recover a monetary award in the sum of $2 million. (Id. at 4-5,

¶¶ II.A, III.)

DISCUSSION

I. Plaintiff’s In Forma Pauperis Applications are Granted

The Court finds that Plaintiff is qualified by his

financial status to commence these actions without prepayment of

the filing fees. See 28 U.S.C. § 1915(a)(1). Therefore,

Plaintiff’s IFP applications are GRANTED.

II. Consolidation

Under Federal Rule of Civil Procedure 42, “[i]f actions

before the court involve a common question of law or fact, the

court may: (1) join for hearing or trial any or all matters at

issue in the actions; (2) consolidate the actions; or (3) issue

any other orders to avoid unnecessary cost or delay.” FED. R. CIV.

P. 42(a). “The trial court has broad discretion to determine

whether consolidation is appropriate.” Johnson v. Celotex Corp.,

899 F.2d 1281, 1284-85 (2d Cir. 1990). Consolidation of cases

with common questions of law or fact is favored “to avoid

unnecessary costs or delay,” id. at 1284, and to “expedite trial

and eliminate unnecessary repetition and confusion,” Devlin v.

Transp. Commc’n Int’l Union, 175 F.3d 121, 130 (2d Cir. 1999)

(citation omitted).

Here, Plaintiff’s Complaints name the same Defendant and

seek to challenge the conditions of his confinement while at the

Suffolk County Riverhead Correctional Facility. As a result, the

Complaints involve common issues of law and fact, and the Court

finds consolidating Plaintiff’s cases will permit efficient

resolution of the claims raised therein. Accordingly, in the sound

exercise of its discretion, the Court orders that Plaintiff’s cases

be CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42

into the first filed case, 21-CV-4037(JS)(ARL). The Clerk of Court

is DIRECTED to (1) consolidate these actions; and (2) mark the

cases assigned Docket Nos. 21-CV-5728(JS)(ARL) and 21-CV-

5832(JS)(ARL) CLOSED. All future filings shall be docketed in

only 21-CV-4037.

III. 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) (Seybert, J.).

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.). Finally, “although a court

must accept as true all of the allegations contained in a

complaint, that tenet is inapplicable to legal conclusions, and

threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation omitted)).

Therefore, while the Court must “draw the most favorable inferences

that [a plaintiff’s] complaint supports, [it] cannot invent

factual allegations that [a plaintiff] has not pled.” Id. at 170.

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) (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

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).

IV. 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 submissions are any

allegations establishing how the sole Defendant, Sheriff Toulon,

was personally involved in the alleged constitutional violations.

Indeed, Plaintiff has not alleged any facts demonstrating how

Defendant’s conduct or inaction caused the constitutional

violations at issue. (See generally Compls.) In the absence of

any such allegations, including how Defendant’s conduct or

inaction violated Plaintiff’s constitutional rights, Plaintiff’s

Complaints 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 the Defendant given his position as

Sheriff, 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 Complaints are DISMISSED 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. Here, Plaintiff claims

that Defendant’s “negligence” caused his alleged injuries.

However, it is well established that “mere negligence of a

correction official is not a basis for a claim of a federal

constitutional violation under Section 1983.” Michel v. Orange

County, No. 21-CV-9406, 2021 WL 5529841, at *2 (S.D.N.Y. Nov. 24,

2021) (citing Daniels v. Williams, 474 U.S. 327, 335-36 (1986);

Davidson v. Cannon, 474 U.S. 344, 348 (1986)).

Further, insofar as Plaintiff alleges that the

conditions of his confinement did not comport with the Eighth

and/or Fourteenth Amendment, his sparse and conclusory allegations

do not allege a plausible claim. 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 plausibly allege 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.; 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).

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

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

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

V. 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 Memorandum & Order. Any Amended Complaint shall

be clearly labeled “Amended Complaint” and shall be filed in the

21-CV-5120(JS)(ARL) action. 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 applications (ECF No. 2) are GRANTED;

IT IS FURTHER ORDERED that that Plaintiff’s cases be

CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into

the first filed case, 21-CV-4037(JS)(ARL). The Clerk of Court is

DIRECTED to: (1) consolidate these actions; and (2) mark the cases

assigned Docket Nos. 21-CV-5728(JS)(ARL) and 21-CV-5832(JS)(ARL)

CLOSED. Any future filings shall be docketed in only 21-CV-4037;

IT IS FURTHER ORDERED that Plaintiff’s claims are

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

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 Memorandum &

Order. Any Amended Complaint shall be clearly labeled “Amended

Complaint” and shall be filed in the 21-CV-4037(JS)(ARL) action.

Plaintiff is WARNED that if he does not file an Amended Complaint

within 30 days from the date of this Memorandum & Order, judgment

will enter and this case will be dismissed;

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: December 21 , 2021

Central Islip, New York