Braithwaite v. Suffolk County New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KESTON BRAITHWAITE,

Plaintiff,

-against- MEMORANDUM & ORDER

22-CV-3750(JS)(AYS)

SUFFOLK COUNTY NEW YORK;

STATE OF NEW YORK;

SUFFOLK COUNTY CORRECTIONAL FACILITY;

ERROL D. TOULON, SHERIFF OF SUFFOLK COUNTY;

JOHN DOE # 1, MAILROOM OFFICER;

JOHN DOE #2, COMMISSARY CORRECTION OFFICER;

JOHN DOE #3, COMMISSARY CORRECTION OFFICER;

JOHN DOE #4, COMMISSARY CORRECTION OFFICER;

JOHN DOE #5, MAILROOM CORRECTION OFFICER;

JOHN DOE #6, MAILROOM CORRECTION OFFICER;

JOHN DOE #7, MAILROOM CORRECTION OFFICER;

JOHN DOE #8, MAILROOM CORRECTION OFFICER;

JOHN DOE #9, MAILROOM CORRECTION OFFICER;

JOHN DOE #10, MAILROOM CORRECTION OFFICER;

JOHN DOE #11, MAILROOM CORRECTION OFFICER;

JOHN DOE #12, MAILROOM CORRECTION OFFICER;

Defendants.

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APPEARANCES

For Plaintiff: Keston Braithwaite, pro se

759792

Suffolk County Correctional Facility

110 Center Drive

Riverhead, New York 11901

For Defendants: No appearance.

SEYBERT, District Judge:

Before the Court is the application to proceed in forma

pauperis (“IFP”) (hereafter, the “IFP Application”) filed by

incarcerated pro se plaintiff Keston Braithwaite (“Plaintiff”) in

relation to his Complaint filed on June 22, 2022 pursuant to 42

U.S.C. § 1983 (“Section 1983”). (See IFP Application, ECF No. 2;

Compl., ECF No. 1.) On September 26, 2022, Plaintiff filed an

Amended Complaint. (See Am. Compl., ECF No. 8.) For the reasons

that follow, Plaintiff’s IFP Application is GRANTED; however, the

Amended Complaint is sua sponte DISMISSED pursuant 28 U.S.C. §§

1915(e)(2)(B), 1915A(b) as set forth below.

BACKGROUND1

I. The Amended Complaint

Like the original Complaint, Plaintiff’s Amended

Complaint is submitted on the Court’s Section 1983 complaint form

with an additional thirty pages added thereto, as well as 227 pages

of attachments and exhibits, including a copy of the original

Complaint. Plaintiff continues to name Suffolk County, New York

(“Suffolk County”), the State of New York (“NY State”), the Suffolk

County Correctional Facility (the “Jail”), Suffolk County Sheriff

Errol D. Toulon (“Sheriff Toulon”), and twelve unnamed individuals

1 Excerpts from the Amended Complaint are reproduced here exactly

as they appear in the original. Errors in spelling, punctuation,

and grammar have not been corrected or noted. Although Plaintiff

has handwritten page numbers, they do not align with the page

numbering assigned by the Court’s Electronic Case Filing system

(“ECF”). For consistency, the Court references the page numbers

assigned by ECF. Notably, the Amended Complaint is almost

identical to the original Complaint until the thirtieth page, at

which point Plaintiff has added claims relating to the Jail’s

protocols concerning the COVID-19 virus.

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who are each alleged to work at the Jail (“John Does 1-12” and

collectively, “Defendants”) as the Defendants. Plaintiff alleges

that his claims arise under the First, Fourth, Eighth, and

Fourteenth Amendments and complains about the mail and COVID-19

protocols at the Jail beginning on December 9, 2020. (See Am.

Compl., in toto.)

More specifically, Plaintiff complains that: (1) he has

received his mail opened; (2) his mail has been “intercepted”; and

(3) his outgoing mail is leaving the facility in an “untimely

fashion.” (Id. at 9.) According to the Amended Complaint, on

December 9, 2020, “Plaintiff’s legal mail was delivered to him

opened.” (Id. at 10.) Plaintiff also alleges that he handed two

outgoing mail envelopes with the Commissary Officers on January

13, 2022, but on January 18, 2022, Plaintiff discovered that it

had not yet left the facility. (See id. at 12-13.) Plaintiff

further alleges that he grieved this delay and, following his

appeal of the denial of that grievance, on March 10, 2022, the

Grievance Coordinator approved the grievance insofar as the delay

in sending Plaintiff’s outgoing mail did not comport with 9

N.Y.C.R.R. § 7004.2 which requires that all outgoing prisoner

correspondence shall be collected and forwarded to the United

States Postal Service at least once each business day. (See id.

3

at 14.) Plaintiff claims that the Grievance Coordinator sent the

approved grievance to Sheriff Toulon who “chose to ignor[e] the

requirements of the 9 NYCRR Sec. 7004.2(e)(minimum standards for

inmate correspondence)” and “failed to supervise his subordinates

because Defendants John Doe # 2, John Doe #3, and John Doe #4

continues to mail Plaintiff’s mail out untimely.” (Id.)

Plaintiff provides several other examples in support of

his claims. On March 24, 2022, Plaintiff alleges that he gave

John Doe #3 one envelope containing “legal mail” and Plaintiff

expected it to be delivered to the Postal Service the following

day. (Id.) However, Plaintiff learned that the officer “who

delivers the legal mail to the post office”, John Doe # 2, “went

on vacation before sending Plaintiff’s legal mail out.” (Id. at

14-15.) Accordingly, Plaintiff’s legal mail was not brought to

the post office until March 30, 2022. (See id. at 15.) Plaintiff

filed a grievance over this six-day delay, which grievance was

accepted. (See id. at 16.) The grievance response indicated that

“[t]he mail officer inadvertently forgot to send out Inmate

Braithwaite’s mail before going on vacation. Corrective action

will be taken to prevent this from occurring in the future . . .

.” (Id. at 17.) Notwithstanding this representation, Plaintiff

alleges that his “legal mail was sent out late again.” (Id.)

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Plaintiff next alleges that on May 17, 2022, he handed

legal mail to John Doe #4, but said mail was not mailed the next

day as Plaintiff expected, but a week later, i.e., May 24, 2022,

because John Doe #4 went on vacation. (Id.) According to the

Complaint, one of Plaintiff’s seven other cases in this Court,2

Braithwaite v. Gaitman, et al., No. 22-CV-0974 (the “February 2022

Action”), “was prejudiced by the delay of his legal mail being

mailed out late.” (Id. at 18.) More specifically, Plaintiff

alleges that he wrote a letter to the Court, dated May 5, 2022,

requesting leave to amend his complaint in the February 2022 Action

and, on May 17, 2022, he gave the envelope containing the amended

2 Plaintiff is a prolific filer in this Court. Since January

2022, Plaintiff has filed eight pro se in forma pauperis complaints

relating to his arrest and state court criminal prosecution:

(i) Case No. 22-CV-0161(JS)(AYS), Braithwaite v. Hon. John

B. Collins, et al.;

(ii) Case No. 22-CV-0974(JS)(AYS) Braithwaite v. Gaitman, et

al., i.e.,(aka, the “February 2022 Action”);

(iii) Case No. 22-CV-3750(JS)(AYS), Braithwaite v. Suffolk

County, et al., i.e., the present action;

(iv) Case No. 22-CV-5070(JS)(AYS), Braithwaite v. United

States, et al.;

(v) Case No. 22-CV-5071(JS)(AYS), Braithwaite v. State of

New York, et al.;

(vi) Case No. 22-CV-5073(JS)(AYS), Braithwaite v. Suffolk

County, et al.;

(vii) Case No. 22-CV-5074 (JS)(AYS), Braithwaite v. State of

New York, et al.; and

(viii) Case No. 22-CV-5359(JS)(AYS), Braithwaite v. ADA Kubetz,

et al.

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complaint to the Commissary Officer which was not mailed out of

the Jail until May 24, 2022. (See id.) However, by Order dated

May 23, 2022, this Court dismissed Plaintiff’s complaint in the

February 2022 Action pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-

(ii), 1915A(b)(1) for failure to allege a plausible claim for

relief. (Id. at 18-19; see also February 2022 Action, May 23,

2022 Mem. & Order, ECF No. 11.)3 Thus, Plaintiff alleges that his

claim was prejudiced by the mail delay because he intended to

present a conspiracy theory of liability in his amended complaint.

(Id. at 19-20; see also Ex. 8 (ECF pp. 177-178) and Ex. 9 (ECF pp.

179-204).)

Additionally, Plaintiff complains that he has not

received the green return receipt postcards for six separate

letters sent certified mailed in January and February 2022. (See

id. at 21-26.) After each of Plaintiff’s grievances and appeals

relating to his non-receipt of the green postcards were denied

(see id. at 21-27), Plaintiff wrote to the Post Master on or about

April 8, 2022 inquiring about the status of these green post cards;

in response, he received a letter “[l]ater in the month of April”

3 In its May 23, 2022 Memorandum & Order, the Court also denied

leave to amend the complaint given that Plaintiff purported to

allege Section 1983 claims against his privately retained criminal

defense attorneys who do not act under color of state law. (See

id. at 6-10.)

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stating that five of the six green post cards “were signed for”

and one was “lost in transit.” (Id. at 27-28.) Thus, Plaintiff

surmises that the “John Doe(s) 5-12 in the mailroom are interfering

with Plaintiff’s legal mail.” (Id. at 28.)

Plaintiff next complains about the protocols at the Jail

as related to the COVID-19 virus (see id. at 30-37), which he

alleges are “inhumane, excessive, and a[n] overreaction.” (Id.

at 30.) According to Plaintiff’s Amended Complaint, upon his

arrival at the Jail on May 20, 2020, as was required of all new

arriving inmates in accordance with the Jail’s policy, he was

immediately quarantined for fourteen days; during that period,

each day Plaintiff was in “lockdown” for twenty-three hours and

afforded one hour for activities such as showering and making

telephone calls. (See id.) Plaintiff alleges that neither he nor

the other inmates who went through the quarantine process were

tested for the COVID-19 virus. (See id.)

“[U]pon information and belief,” Plaintiff complains

that corrections officers, civilian staff, and others would enter

various locations at the Jail, such as the inmate housing units,

medical clinic, and law library, “without taking a COVID test and

without many times following COVID-19 protocol of wearing a mask.”

(Id. at 31.) Thus, Plaintiff complains that he may have been

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exposed to the virus. (Id.)

Plaintiff next complains that, since his initial

quarantine upon arrival at the Jail, he has been placed in

quarantine five more times. (Id. at 32.) On January 20, 2021,

another inmate in Plaintiff’s housing unit tested positive for the

virus and, as a result, the entire unit was placed in quarantine

for fourteen days. (Id.) Upon the conclusion of the quarantine

period, Plaintiff and the other inmates tested negative for the

virus and were returned to the general population. (Id.) This

series of events was repeated on November 12, 2021, December 6,

2021, January 7, 2022,4 and July 24, 2022. (Id. at 32-35.)

According to the Amended Complaint, “Plaintiff never tested

positive for COVID-19 nor did he ever show symptoms of COVID-19

and had to endure six rounds of quarantine.” (Id. at 35.) While

in quarantine, Plaintiff alleges that he was “denied access to the

law library.” (Id.) According to the Amended Complaint, the

COVID-19 protocol concerning quarantine “is very similar to the

process of punitive segregation, where inmates who misbehave are

placed in cells for an amount of days determined at a disciplinary

hearing. . . .” (Id. at 37.) Thus, Plaintiff complains that he

4 Plaintiff alleges that the quarantine period for this and the

subsequent periods was for only ten, rather than fourteen, days.

(See id. at 34-35.)

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“has been effectively punished without having been cited for

misbehavior, thereby violating Plaintiff’s due process rights.”

(Id.)

As a result of the foregoing, Plaintiff claims to have

suffered emotional distress, anguish, pain and suffering, and

headaches; therefore, he seeks an unspecified sum as “damages.”

(Id. ¶ II.A. at 9; see also id. at 38.)

II. The February 2022 Action

Given Plaintiff’s reliance on his prior case, the

February 2022 Action, in support of Section 1983 claims he raises

in the present Amended Complaint in this action, i.e., that he was

denied access to the Court, a brief review of the February 2022

Action is warranted. As is relevant here, by Memorandum and Order

dated May 23, 2022, the Court granted Plaintiff’s application to

proceed in forma pauperis and sua sponte dismissed his complaint

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

retained defense attorneys in an underlying, then on-going state

criminal prosecution. (See February 2022 Action, Mem. & Order,

ECF No. 11; see also id., Compl., ECF No. 1.) Judgment was entered

on May 25, 2022. (See id., Judgment, ECF No. 12.) The Court denied

leave to amend the complaint given that Plaintiff purported to

allege Section 1983 claims solely against his privately retained

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criminal defense attorneys who do not act under color of state

law. (See id., Mem. & Oder at 6-10.) In making that determination,

the Court also considered whether liability could be imposed under

a conspiracy theory; it carefully reviewed Plaintiff allegations

in this regard, but found them to be conclusory and, therefore,

insufficient to maintain a conspiracy claim. (See id. at 7-8.)

Yet unaware of the Court’s Memorandum and Order and

Judgment, Plaintiff had submitted an amended complaint pursuant to

Section 1983 against the same defendants that was received at the

Court on May 25, 2022. (See February 2022 Action, Am. Compl.,

attached to ECF No. 15.) However, given the May 23, 2022 dismissal

of Plaintiff’s original, February 2022 Complaint and the

corresponding entry of Judgment, Plaintiff’s amended complaint was

returned to him without consideration. (See February 2022 Action,

Letter, ECF No. 15.) On June 13, 2022, Plaintiff timely appealed

the Clerk’s May 25, 2022 Judgment. (See February 2022 Action,

Notice of Appeal, ECF No. 16.)

Given Plaintiff’s pro se status, the Court liberally

construed Plaintiff’s June 13, 2022 Notice of Appeal as a motion

for reconsideration of the Court’s May 2022 Memorandum and Order

dismissing the complaint. (See February 2022 Action, Oct. 24,

2022 Mem. & Order, ECF No. 19.) The Court granted reconsideration,

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accepted the amended complaint for filing, and upon careful

consideration of the allegations in the amended complaint, again

dismissed Plaintiff’s Section 1983 claims for failing to allege

state action, even under a conspiracy theory. (See id. in toto.)

Indeed, as to his conspiracy theory, and as was the case with the

allegations in his the original, February 2022 Complaint,

Plaintiff’s allegations were nothing more than conjectures and

conclusions. (See id. at 18-20.) In sum, even viewed liberally,

Plaintiff’s pleading of a conspiracy theory in his amended

complaint was deficient given the lack of facts that would

plausibly support such a claim. (See id.) Accordingly, the Court

dismissed the amended complaint pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i)-(ii), 1915A(b)(1). (Id. at 20.)

DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

Having reviewed his financial status, the Court finds

that Plaintiff is qualified to commence this action without

prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1).

Therefore, Plaintiff’s IFP Application is GRANTED.

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II. Consideration of Complaint Under the Section § 1915A Analysis

A. Applicable Law

1. 28 U.S.C. §§ 1915(e)(2), 1915A(a)

The Prisoner Litigation Reform Act (”PLRA”) requires

federal district courts to screen complaints brought by prisoners

who seek relief against a governmental entity or an officer or

employee of a governmental entity. See Prison Litigation Reform

Act (“PLRA”), 28 U.S.C. § 1915A(a). The Court must dismiss a

prisoner’s civil rights complaint, or any portion of that complaint

or amended complaint, that is frivolous or malicious, fails to

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

relief from a defendant who is immune from such relief. See 28

U.S.C. §§ 1915(e)(2)(b), 1915A(b); see also Abbas v. Dixon, 480

F.3d 636, 639 (2d Cir. 2007); Liner v. Goord, 196 F.3d 132, 134 &

n.1 (2d Cir. 1999) (noting that under §§ 1915, 1915A, sua sponte

dismissals of frivolous prisoner complaints are not only permitted

but mandatory). 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. See Sealed Plaintiff v. Sealed Defendant,

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537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004). However, a complaint or amended 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) (citation omitted).

The plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id.; accord Wilson v.

Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). 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.’” Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).

2. Section 1983

Section 1983 authorizes a civil claim for damages

against any person who, acting under color of state law, deprives

another of any rights, privileges, or immunities secured by the

Constitution or the laws of the United States. See 42 U.S.C. §

1983; Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). To state

a claim under Section 1983, a plaintiff must “allege that (1) the

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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.” Rae v. County of Suffolk, 693 F. Supp. 2d

217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53

(2d Cir. 1999)). “The purpose of § 1983 is to deter state actors

from using the badge of their authority to deprive individuals of

their federally guaranteed rights and to provide relief to victims

if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161

(1992).

B. Application

1. Claims Against NY State

Plaintiff’s claims against NY State are barred by the

Eleventh Amendment. “Under the Eleventh Amendment, a state and

its agencies are generally immune from suit in federal court.”

Williams v. N.Y.S. Off. of Mental Health, No. 10-CV-1022, 2014 WL

1311405, at *5 (E.D.N.Y. Mar. 31, 2014). Neither of the two

exceptions to this rule, i.e., “an explicit and unequivocal waiver

of immunity by a state or a similarly clear abrogation of the

immunity by Congress,” id., apply here. First, “Section 1983 does

not abrogate the Eleventh Amendment immunity of the States.” Id.

Second, New York has not waived its immunity from suit. See

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Harrison v. New York, 95 F. Supp. 3d 293, 314 (E.D.N.Y. 2015) (“It

is well established that New York State has not waived its

sovereign immunity from Section 1983 claims.” (internal quotation

marks, and citation omitted)). Therefore, the State is entitled

to Eleventh Amendment immunity from Plaintiff’s Section 1983

claims. See, e.g., KM Enters., Inc. v. McDonald, 518 F. App’x 12,

13 (2d Cir. Apr. 30, 2013) (“As a general matter, states enjoy

sovereign immunity from suit in federal court, even if the claim

arises under federal law.” (citing U.S. Const. amend. XI)); London

v. Nassau County Dist. Attorney’s Off., No. 20-CV-3988, 2020 WL

7699644, at *7 (E.D.N.Y. Dec. 28, 2020) (“Eleventh Amendment

immunity bars Plaintiff’s claims for damages against the State of

New York”). Thus, Plaintiff’s Section 1983 claims against NY

State are not plausible and are DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i)-(ii), 1915A(b)(1).5

5 Moreover, NY State is not a “person” within in the meaning of

Section 1983. See Carter v. New York, 316 F. Supp. 3d 660, 667

(S.D.N.Y. 2018) (“[U]nder Section 1983, states are not even

considered “persons” subject to liability.”) (citing Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989) (“We hold

that neither a State nor its officials acting in their official

capacities are ‘persons’ under § 1983.”). Accordingly, for this

additional reason, Plaintiff’s Section 1983 claims against NY

State are not plausible.

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2. Claims Against Suffolk County and the Jail

As a threshold matter, “[t]he Jail is a non-suable entity

because, 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.” Holloway v. Suffolk County Corr. Fac., Med., No. 21-

CV-5011, 2021 WL 5324889, at *3 (E.D.N.Y. Nov. 16, 2021) (Seybert,

J.) (internal quotation marks omitted; citation omitted); see also

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

2002)). Therefore, Plaintiff’s claims against the Jail are

implausible and are DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii), 1915A.

Moreover, it is well-established that a municipality,

like Suffolk County, cannot be held liable under Section 1983 on

a respondeat superior theory. See Monell v. Dep’t of Soc. Servs.

of N.Y. City, 436 U.S. 658, 691 (1978); Agosto v. N.Y.C. Dep’t of

Educ., 982 F.3d 86, 98 (2d Cir. 2020) (“Monell expressly prohibits

respondeat superior liability for municipalities” (citations

omitted)). Rather, to state a claim against a municipality under

Section 1983, “the plaintiff is required to show that the

challenged acts were performed pursuant to a municipal policy or

custom.” Tafolla v. County of Suffolk, No. 17-CV-4897, 2021 WL

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3675042, at *10 (E.D.N.Y. Aug. 19, 2021) (Seybert, J.) (quoting

Littlejohn v. City of N.Y., 795 F.3d 297, 314 (2d Cir. 2015)). To

establish the existence of a municipal policy or custom, a

plaintiff must allege:

(1) the existence of a formal policy which is

officially endorsed by the municipality; (2)

actions taken or decisions made by municipal

policymaking officials, i.e., officials with

final decisionmaking authority, which caused

the alleged violation of the plaintiff’s civil

rights; (3) a practice so persistent and

widespread as to practically have the force of

law or that was so manifest as to imply the

constructive acquiescence of senior policy-

making officials; or (4) that a policymaking

official exhibited deliberate indifference to

constitutional deprivations caused by

subordinates.

Avant, 2021 WL 1979077, at *3 (cleaned up).

a. Claims Against Suffolk County Arising from the Mail

Here, when liberally construing the Amended Complaint,

there are no factual allegations that a municipal policy or custom

existed which caused the alleged constitutional deprivations

relating to Plaintiff’s mail. (See Am. Compl., in toto.) Rather,

Plaintiff alleges that the practice and custom in New York State

is “for prison officials to make sure inmates legal mail is opened

in their presence.” (Id. at 12.) Indeed, Plaintiff alleges that

he sent mail to himself and, consistent with that practice, he

received it sealed. (Id.) Given that Plaintiff cites to only a

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single instance, on December 9, 2020, when his legal mail was

delivered to him opened (id. at 10, 28), his allegations fall well-

short of the widespread practice or policy required to impose

municipal liability. See, e.g., Delacruz v. City of N.Y., No. 15-

CV-3030, 2016 WL 5390898, at *4 (S.D.N.Y. Sept. 26, 2016) (finding

“only a single instance of delay of [plaintiff’s] mail by the City

. . . d[id] not constitute a widespread practice or policy, much

less one that is deliberate and malicious”) (citing DeCarlo v.

Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“‘[A] single incident alleged

in a complaint, especially if it involved only actors below the

policy-making level, does not suffice to show a municipal

policy.’”) (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d

119, 123 (2d Cir. 1992)).

Nor has Plaintiff adequately alleged that the claimed

delay of or interference with his mail was pursuant to some

official policy, practice, or custom. (See Am. Compl., in toto.)

In this regard, Plaintiff has “failed to identify a ‘single action’

by a specific official with final policymaking authority that led

to the alleged constitutional violation.” Okongwu v. County of

Erie, No. 21-1025, 2022 WL 6585217, at *1 (2d Cir. Oct. 7, 2022)

(Summary Order) (quoting Hu v. City of N.Y., 927 F.3d 81, 105 (2d

Cir. 2019)).

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Thus, in the absence of any facts from which the Court

could reasonably construe a plausible Section 1983 claim against

Suffolk County with regard to the mail protocols at the Jail, such

claims are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(b) and 1915A(b).

b. Claims Challenging Suffolk County’s COVID-19 Policy

In contrast, Plaintiff has adequately alleged that there

was a municipal policy concerning the protocol for the quarantine

of inmates in light of the COVID-19 virus. (Id. at 30, 35-37.)

Indeed, the Amended Complaint alleges that, upon Plaintiff’s

arrival at the Jail, “he was processed and immediately housed in

the reception unit to quarantine for fourteen (14) days which is

Suffolk County New York and Sheriff Toulon’s policy for all new

inmate arrivals, including Plaintiff.” (Id. at 30.) Plaintiff

also alleges that there is a policy to place all inmates in

quarantine who have been exposed to an inmate who tests positive

for the COVID-19 virus. (Id. at 31-37.)

At the time he filed the Amended Complaint on September

26, 2022, Plaintiff was post-conviction, having been convicted by

a jury on July 18, 2022 of several felony drug and weapon

possession charges. See https://iapps.courts.state.ny.us/webcrim

(last visited on October 13, 2022). Thus, his deliberate

19

indifference claims arise under the Eighth Amendment. See Gazzola

v. County of Nassau, No. 16-CV-0909, 2022 WL 2274710, at *8

(E.D.N.Y. June 23, 2022) (“‘A post-conviction-prisoner’s

deliberate indifference claim is analyzed under the Eighth

Amendment while the same claim raised by a pre-trial detainee is

analyzed under the Due Process Clause of the Fourteenth

Amendment.’” (quoting Horace v. Gibbs, 802 F. App’x 11, 13–14 (2d

Cir. Feb. 6, 2020) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d

Cir. 2017))).

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

20

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, 849 F.3d at 29 (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).

“[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:

[c]ourts have long recognized that conditions

posing an elevated chance of exposure to an

infectious disease can pose a substantial risk

of serious harm. [However], 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.”

21

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)).

Here, Plaintiff’s allegations make clear that Suffolk

County implemented safety measures in response to the COVID-19

Pandemic. Moreover, those measures apparently protected Plaintiff

from contracting the virus, as –- by his own allegations -- he was

exposed to the virus in the Jail on five occasions and, following

a period of quarantine, tested negative each time. Thus, the

challenged conditions-of-confinement did not pose an objectively

serious risk of harm to Plaintiff. And, even assuming that they

had, Plaintiff fails to allege that any Jail “official acted 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).” Porter v.

Fam. Serv. League, No. 21-CV-5120(JS)(ARL), 2021 WL 5324888, at *3

(E.D.N.Y. Nov. 16, 2021).

Further, Plaintiff’s allegations that the quarantine

conditions, e.g., twenty-three hour’s daily lock down with one

hour for various activities (see Am. Compl. at 30, 33), violate

the Eighth Amendment are not plausible. Assuming the truth of

Plaintiff’s allegations, “when a prison regulation impinges on

22

inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” Turner

v. Safely, 482 U.S. 78, 89 (1987). Indeed, “the Court must defer

to the broad discretion of prison authorities in their attempt to

control the spread of COVID-19 within their facility. That is,

even ‘when a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to

legitimate penological interests.’” Jones v. County of Allegheny,

No. 21-CV-1094, 2022 WL 2806779, at *7 (W.D. Pa. June 24, 2022)

(quoting Turner, 482 U.S. at 89), report and recommendation

adopted, 2022 WL 2803111 (W.D. Pa. July 18, 2022). Thus:

[b]ecause it is difficult to social distance

in a correctional setting, the Court cannot

second guess where authorities move those who

test positive, those who refuse to be

vaccinated, those who are more vulnerable to

serious complications should they contract

COVID-19, and those who recover from COVID-

19. That is, the list of relevant

considerations for authorities is long and the

Court will not disturb that administrative

decision-making.

Jones, 2022 WL 2806779 at 7; see also Burrell v. Annucci, No. 22-

CV-0701, 2022 WL 4618737, at *10 (N.D.N.Y. Sept. 30, 2022) (sua

sponte dismissing pro se Section 1983 complaint finding allegations

did not establish an Eighth Amendment claim in the absence of

allegations that defendants failed to implement state, federal,

23

and DOCCS guidelines “knowingly and disregarding an excessive

risk” to plaintiff’s health or safety); Carolina v. Feder, No. 20-

CV-0658, 2021 WL 268854, at *8 (D. Conn. Jan. 26, 2021) (in

rejecting Eighth Amendment challenge to forced quarantine,

recognizing that “[i]n normal times, courts must ‘accord

substantial deference to the professional judgment of prison’

officials on matters of prison administrations” and that “[i]n

attempting to prevent and stem COVID-19 outbreaks, prison

officials are plainly entitled to that substantial deference

[since] COVID-19 poses an incredible risk in prisons and detention

centers” (citing United States v. Skelos, 15-CR-0317, 2020 WL

1847558, at *1 (S.D.N.Y. Apr. 12, 2020) (“Jails and prisons are

powder kegs for infection.”); additional citation omitted)),

reconsideration denied, 2021 WL 723534 (D. Conn. Feb. 24, 2021).

Similarly, courts have routinely upheld the involuntary

placement of inmates in administrative segregation for protective

custody for periods of time far in excess of the ten or fourteen

days of which Plaintiff complains. See, e.g., Milner v. Lamont,

No. 20-CV-1245, 2022 WL 2110971, at *10 (D. Conn. June 9, 2022)

(upholding 75-day involuntary quarantine finding plaintiff “ha[d]

not plausibly alleged that the denial of his recreation and shower

privileges was unwarranted”) (citing Pape v. Cook, No. 20-CV-1324,

24

2021 WL 2186427, at *10 (D. Conn. May 28, 2021) (“[G]iven the

existence of the restriction on out of cell exercise during Mr.

Pape’s [fifteen-day] period of confinement because of his exposure

to his cellmate, who had exhibited symptoms of having contracted

COVID-19, Mr. Pape has not plausibly alleged a constitutional

violation.”)); Herbert v. Smith, No. 20-CV-6348, 2021 WL 3292263,

at *6 (S.D.N.Y. Aug. 2, 2021) (dismissing Fourteenth Amendment

conditions-of-confinement claim explaining, “although Plaintiff

does not specify why he was denied recreation periods, the timing

of the alleged denials . . . indicates that Plaintiff was denied

recreation periods not because of Defendants’ deliberate

indifference; but rather, as a result of health and safety

restrictions implemented at [his facility] to prevent the COVID-

19 virus’s spread among the inmate population -— a sufficiently

‘unusual circumstance’ to justify such a denial”); see also Tavares

v. Amato, 954 F. Supp. 2d 79, 92 (N.D.N.Y. 2013) (finding

Plaintiff’s allegation that he was confined for 132 days “in

[protective] administrative segregation for twenty-three hours a

day, only allowed to shower during his one hour long recreation,

prohibited from wandering around outside of his cell, and being

forced to pick and choose which amenities he wanted to avail

himself to given his limited amount of time outside of his cell,

25

are insufficient to support an Eighth Amendment claim”); Davidson

v. Coughlin, 968 F. Supp. 121, 131 (S.D.N.Y. 1997) (finding that

the denial of “all outdoor exercise” for “fourteen days in a row”

does not “implicate Eighth Amendment concerns”).6

Thus, Plaintiff has not plausibly alleged a deprivation

of his Eighth Amendment rights by Suffolk County. Accordingly,

such claims are DISMISSED pursuant to 28 U.S.C. §§

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

3. Claims Against Sheriff Toulon

To state a claim for relief under Section 1983 against

an individual defendant, a plaintiff must allege the personal

involvement of the defendant in the alleged constitutional

deprivation. See Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).

In Iqbal, the Supreme Court held that “[b]ecause vicarious

liability is inapplicable to . . . [Section] 1983 suits, a

plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the

6 Even if the Court were to liberally construe the pro se Amended

Complaint to allege a due process, rather than a deliberate

indifference, claim, it too would fail. “No court has held that

a hearing is required before an inmate is placed in medical

quarantine.” Milner, 2022 WL 2110971, at *11 (citing Pape, 2021

WL 2186427, at *12 (dismissing procedural due process challenge to

confinement in quarantine for fifteen days without a hearing by

sentenced inmate)).

26

Constitution.” Iqbal, 556 U.S. at 676. A complaint based upon a

violation under Section 1983 that does not allege the personal

involvement of a defendant fails as a matter of law and should be

dismissed. See Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir.

Jan. 12, 2010).

Here, although Plaintiff names Sheriff Toulon as a

Defendant in the caption of his Amended Complaint, Plaintiff

includes no factual allegations of conduct or inaction

attributable to Sheriff Toulon. (See Am. Compl., in toto.)

Indeed, with regard to his claims concerning the mail, Plaintiff

alleges that, following the denial of his grievance and appeal

thereof, the Citizens Policy and Complaint Review Council (“CCRC”)

“sent their decision . . . to Sheriff Toulon” and apprised him

that “the requirement pursuant to 9 NYCRR Sec. 7004.2(e) was not

observed.” (Id. at 13-14.) According to the Amended Complaint,

Sheriff Toulon “chose to ignor[e]” this requirement and “failed to

supervise his subordinates because John Doe #2, John Doe #3, and

John Doe #4 continues to mail Plaintiff’s mail out untimely.”

(See id. at 14.) Further, Plaintiff claims that “Sheriff Toulon

failed to act on information indicating that these incidents and

violations is [sic] continuously occurring. Mr. Toulon should

have learned of the violation through Plaintiff’s grievance #Y-

27

2022-025 which was appealed by the CCRC, a copy of which was sent

to him . . . and he should have remedy [sic] the wrong. . . . Mr.

Toulon acted with negligence in supervising his subordinates.”

(Id. at 19, 29.)

To the extent Plaintiff seeks to impose Section 1983

liability on Sheriff Toulon given the supervisory position he

holds, the Second Circuit has made clear that there is “no special

test for supervisory liability.” Tangreti v. Bachmann, 983 F.3d

609, 616 (2d Cir. 2020). Rather, 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. However, “bald assertions

and conclusions of law” are insufficient to establish personal

involvement. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

Accordingly, given Plaintiff’s conclusory and speculative

allegations that Sheriff Toulon was “neglig[ent] in managing his

subordinates”, Plaintiff’s Section 1983 claims against Sheriff

Toulon are implausible.

Further, insofar as Plaintiff complains that the claimed

mail delay was brought to Sheriff Toulon’s attention and he failed

to remedy it, such allegation is insufficient to render Plaintiff’s

28

Section 1983 claim against Sheriff Toulon plausible. See

Tangreti, 983 F.3d at 620 (“[I]t is not enough for [a plaintiff]

to show that [a defendant] was negligent, or even grossly

negligent, in her supervision of the correctional officers or in

failing to act on the information she had.”). Accordingly,

Plaintiff’s Section 1983 claims against Sheriff Toulon are

DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b).7

4. Section 1983 Claims Against the Individual

Correction Officers

Even construing the Amended Complaint liberally,

Plaintiff’s allegations do not set forth a plausible Section 1983

claim against any of the unidentified individual Correction

Officers. Liberally construed, Plaintiff attempts to allege a

denial of his First Amendment rights arising from the alleged

interference with his mail, including mailing delays, which could

be construed as a denial of access to the court. Plaintiff also

alleges a deprivation of his Fourth Amendment rights based upon

the opening of his mail on December 9, 2020. The Court addresses

each of these claims below.

7 Moreover, even if Plaintiff had adequately pled supervisory

liability, for the reasons set forth herein, he has not alleged a

plausible Constitutional deprivation against any Defendant.

29

a. Interference with Plaintiff’s In-Coming Legal Mail

“A prisoner’s right to the free flow of incoming and

outgoing mail is protected by the First Amendment.” Davis v.

Goord, 320 F.3d 346, 351 (2d Cir. 2003). Courts have long afforded

“greater protection to legal mail than to non-legal mail, as well

as greater protection to outgoing mail than to incoming mail.”

Id. at 351. To state a claim for a violation of such a right, a

“prisoner must show that the interference with his mail was both

regular and unjustified.” Antrobus v. City of N.Y., 2014 WL

1285648, at *4 (S.D.N.Y. Mar. 27, 2014); Davis, 320 F.3d at 351.

“[A]n isolated incident of mail tampering is usually insufficient

to establish a constitutional violation.” Id. at 351-52. But as

few as two incidents of mail tampering may constitute a First

Amendment violation if indicative of “regular” and “unjustifiable”

interference with a prisoner’s mail. Id. at 351; see also

Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986).

Here, even upon a liberal construction, Plaintiff simply

does not allege enough facts suggesting that Defendants interfered

with his mail in a manner that rises to the level of a

constitutional violation. Though Plaintiff alleges that his

“legal mail was delivered to him opened” on December 9, 2020, (Am.

Compl., ECF No. 8, at 9-10), this single, isolated incident does

30

not suggest regular or unjustified interference with Plaintiff’s

mail or that it hindered his legal matters. See Labossiere v.

Downstate Corr. Facility, No. 21-CV-10540, 2022 WL 356549, at *5

(S.D.N.Y. Feb. 7, 2022) (sua sponte dismissing general mail

tampering claim in the absence of allegations suggesting “regular

and unjustifiable interference with [plaintiff’s] mail”); Amaker

v. Lee, No. 13-CV-5292, 2019 WL 1978612, at *14 (S.D.N.Y. May 3,

2019) (“[T]here is no constitutional violation unless the mail

tampering is regular and unjustifiable rather than an isolated

incident) (citing Shepherd v. Fisher, No. 08-CV-9297, 2011 WL

3278966, at *2 (S.D.N.Y. July 27, 2011) (“[A]n inmate must allege

that the tampering was part of an ongoing practice of unjustified

censorship or that it prejudiced the inmate’s legal actions.”);

further citation omitted)). Thus, Plaintiff’s Section 1983 claims

alleging a deprivation of his First Amendment right arising from

his opened incoming mail are not plausible and are thus DISMISSED

WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i)-(2),

1915A(b)(1).

b. Claims Alleging a Deprivation of Access to the Court

In addition, delay or interference with an inmate’s mail

may give rise to a First Amendment claim for deprivation of access

to the courts.

31

Courts of Appeals have recognized two variants

of right-of-access claims. First, plaintiffs

may allege that “systemic official action”

frustrated their ability to file a suit. The

object of this type of suit “is to place the

plaintiff in a position to pursue a separate

claim for relief once the frustrating

condition has been removed.” Such suits are

therefore labeled “forward-looking.” The

second variant of right-of-access claims is

“backward-looking access claims,” covering

suits that “cannot now be tried (or tried with

all material evidence), no matter what

official action may be in the future.” This

may occur, for instance, if the official

action “caused the loss or inadequate

settlement of a meritorious case.” In either

circumstance, however, “the right is ancillary

to the underlying claim, without which a

plaintiff cannot have suffered injury by being

shut out of court.”

Sousa v. Marquez, 702 F.3d 124, 127–28 (2d Cir. 2012) (variously

quoting and citing Christopher v. Harbury, 536 U.S. 403, 413–14,

n.11, 415 (2002)) (emphasis added). Regardless under which theory

one brings an access-to-courts claim,8 “a plaintiff must show that

the defendant caused the plaintiff injury or, put less succinctly,

that the defendant took or was responsible for actions that had

the actual effect of frustrating the plaintiff’s effort to pursue

a legal claim.” Oliva v. Town of Greece, 630 F. App’x 43, 45 (2d

Cir. Nov. 17, 2015) (summary order) (collecting cases); see also

8 “The viability of backward-looking right-of-access claims is

far from clear in this Circuit . . . .” Sousa, 702 F.3d at 128.

32

Mahon v. Moultrie, 657 F. App’x 52, 53 (2d Cir. Aug. 24, 2016)

(“To state a claim of denial of court access, a plaintiff must

allege that the defendant took or was responsible for actions that

hindered a plaintiff’s efforts to pursue a legal claim and that

the defendant’s actions resulted in actual injury to the

plaintiff.” (emphasis added)); Corines v. Westchester County Dep’t

of Corr., No. 22-CV-5179, 2022 WL 4341999, at *5 (S.D.N.Y. Sept.

19, 2022) (“A claim for deprivation of access to the courts

requires two allegations: (1) that the plaintiff has a valid

underlying cause of action separate from the right-of-access

claim; and (2) that the plaintiff has suffered frustration or

hindrance of the litigation that has been caused by the defendant’s

actions.” (emphasis added)) (citing Harbury, 536 U.S. at 415;

further citation omitted)). Plaintiff cannot plausibly make out

such a claim in this instance.9

9 This claim is being analyzed as a so-called “forward-looking”

right-of-access claim, where the object of such a claim is to place

a plaintiff in a position to pursue a separate claim for relief

once the frustrating condition has been removed. See Sousa, 702

at 127 (citing Harbury, 536 U.S. at 413, 414 n.11). Even if the

Court were to examine Plaintiff’s access-to-court claim under the

“backward-looking” rubric, it would fail since Plaintiff cannot

satisfy all four elements required to maintain such a claim:

First, the plaintiff must identify a

nonfrivolous, arguable underlying claim.

Second, the plaintiff must establish that the

defendant took or was responsible for actions

that hindered a plaintiff’s efforts to pursue

33

i. Regarding General Incidents of Interference

with Plaintiff’s Legal Mail

To the extent Plaintiff complains about: (1) his legal

mail having been “opened” when he received it on December 9, 2022

(Am. Compl. at 10-12); (2) his not having received certified mail

receipts on six occasions (id. at 9, 21-26); and (3) there having

been a delay on January 13, 2022 and March 24, 2022 in mailing out

three envelopes containing unspecified “legal mail” (id. at 12-

13, 14-15), these allegations do not plausibly allege a denial-

of-access-to-court claim, since Plaintiff fails to asset how the

a legal claim. Third, the plaintiff must show

that the defendant’s alleged conduct was

deliberate and malicious. Fourth, the

plaintiff must demonstrate that the

defendant’s actions resulted in an actual

injury to the plaintiff.

Corines v. Westchester County, Dep’t of Corr., No. 22-CV-5179,

2022 WL 4341999, at *6 (S.D.N.Y. Sept. 19, 2022) (quoting Jean-

Laurent v. Lawrence, No. 12-CV-1502, 2015 WL 1208318, at *4

(S.D.N.Y. Mar. 17, 2015)). Plaintiff is unable to identify a

nonfrivolous, arguable underlying claim; Plaintiff’s original

complaint and amended complaint in the February 2022 Action were

dismissed because his Section 1983 claims, based upon a conspiracy

theory of liability, were supported by mere conjectures and

conclusive allegations. Even if that were not so, Plaintiff fails

to allege that the challenged conduct was deliberate and malicious,

stating, instead, that the reason his outgoing mail was delayed

was because the officer responsible for mailing it “was on

vacation.” (Am. Compl. at 17.) Finally, Plaintiff cannot

demonstrate that the Defendants’ actions in delaying his May 2022

outgoing mail resulted in an actual injury to the Plaintiff. (See

infra at 37-39.)

34

alleged incidents frustrated or otherwise hindered a nonfrivolous

legal claim. See Corines, 2022 WL 4341999 at *6 (sua sponte

dismissing denial-of-access-to-court claims where, like here, the

plaintiff did not allege how defendant’s actions in failing to

provide a copy of the mail receipt frustrated or hindered his

nonfrivolous legal claim) (citing Christopher v. Harbury, 536 U.S.

403, 415 (2002) (“[T]he underlying cause of action, whether

anticipated or lost, is an element that must be described in the

complaint.”)). Nor has Plaintiff alleged suffering an injury

caused by these incidents.

ii. Regarding the Amended Complaint in the

February 2022 Action

Plaintiff alleges that, in its May 2022 M&O, this Court

dismissed his Section 1983 claims against his former attorneys

because they are not state actors acting under color of law. (See

Am. Compl. at 20.) He further alleges his February 2022 Action

“was prejudiced because he attempted to amend his Conspiracy

Claim,” but the Court dismissed that Action before Plaintiff was

able to file his amended complaint in which “he amended that his

attorneys ‘Private actors’ conspired with ‘State actors’.” (Id.;

see also id. at 18 (“The Plaintiff had a pending legal action in

the United States District Court (EDNY) Docket #22-CV-00974-JS-

AYS that was prejudiced by the delay of his legal mail being mailed

35

out late.”).) He contends “[t]he fact that John Doe(s) (2-4) held

Plaintiff’s amended Complaint (legal mail) for a week and mailed

it out late to the Court, the Court rejected his Complaint two (2)

days before the Court received the amended Complaint.” (Id. at

20-21.)

As an initial matter, in his February 2022 Action,

Plaintiff did not present a valid underlying cause of action. The

Court found “Plaintiff’s Complaint must be dismissed because none

of the Defendants are state actors; nor does Plaintiff properly

allege a conspiracy.” (February 2022 Action, May 2022 M&O at 8

(concluding dismissal was warranted because “Plaintiff’s

allegations are speculative and conclusory, and do not set forth

a plausible Section 1983 claim against the Defendants”).) It

reached the same conclusion upon careful consideration of

Plaintiff’s Amended Complaint, which it accepted for filing upon

reconsideration:10

Even a pro se must include some factual

allegations from which the Court can

reasonably construe: an agreement between any

of the Defendants and a state actor; any

agreement to act in concert to inflict an

unconstitutional injury; or, any overt act

done to inflict an unconstitutional injury on

Plaintiff causing damages.

10 (See February 2022 Action, Oct. 24, 2022 Mem. & Order, ECF No.

19, at 12-13.)

36

As is readily apparent here, Plaintiff’s

allegations are speculative and conclusory,

and do not set forth a plausible Section 1983

claim against the Defendants. Accordingly,

the Amended Complaint does not allege a

plausible Section 1983 claim and is sua sponte

DISMISSED . . . .

(Id. at 19-20.)

Moreover, even assuming arguendo that Plaintiff alleged

a valid underlying cause of action, to the extent he bases his

denial-of-access-to-court claim on the delay from May 17, 2022 to

May 24, 2022 in mailing out his amended complaint, that basis is

unavailing. While, at first blush, the delay appears to have

frustrated or hindered Plaintiff’s litigation of the February 2022

Action given that on May 23, 2022, the Court dismissed Plaintiff’s

complaint, denied him leave to amend, and therefore initially

rejected Plaintiff’s amended complaint received two days later,

subsequent history in the case, of which the Court takes judicial

notice,11 demonstrates otherwise.

11 It is well-established that “[i]n the Rule 12(b)(6) context, a

court may take judicial notice of prior pleadings, orders,

judgments, and other related documents that appear in the court

records of prior litigation and that relate to the case sub

judice.” Jianjun Lou v. Trutex, Inc., 872 F. Supp. 2d 344, 350

n.6 (S.D.N.Y. 2012); see also Rothman v. Gregor, 220 F.3d 81, 92

(2d Cir. 2000) (taking judicial notice of pleading in another

lawsuit); Young v. Selsky, 41 F.3d 47, 50-51 (2d Cir. 1994) (taking

judicial notice of defendant’s testimony in a prior action). A

court “may also ‘take judicial notice of its own orders,’ and ‘its

own records’.” Rosado-Acha v. Red Bull Gmbh, No. 15-CV-7620, 2016

37

Plaintiff sought to appeal the Court’s May 23, 2022

Order, filing a Notice of Appeal on June 13, 2022. (See February

2022 Action, Not. of App., ECF No. 16.) As stated supra, because

of his pro se status and his assertions regarding delays in out-

going mail, the Court liberally construed Plaintiff’s Notice of

Appeal as a motion for reconsideration of its denial of leave to

amend. (See id., Oct. 24, 2022 Mem. & Order, ECF No. 19.)

Thereafter, the Court: granted reconsideration “to prevent

manifest injustice”; accepted Plaintiff’s amended complaint for

filing nunc pro tunc; then carefully considered whether the amended

complaint set forth a plausible claim; but, found it did not.

WL 3636672, at *7 (S.D.N.Y. June 29, 2016) (first quoting Ryan v.

Cholakis, No. 13-CV-1451, 2014 WL 803776, at *4 n.3 (N.D.N.Y. Feb.

25, 2014); then quoting Hatch v. Morosco Holding Co., 56 F. 2d 640,

640 (S.D.N.Y. 1932); and citing United States v. Currency in Total

Amount of 2,223.40, 157 F. Supp. 300, 303 (N.D.N.Y. 1957) (“[T]here

seems to be no doubt as to the power of the court to take judicial

notice of its own records in the same or in an interrelated

case.”)).

Here, the Court is relying upon the following found in the

February 2022 Action, which is prior litigation that relates to

the instant case: the pleadings; related documents; and the Court’s

owns orders and records. See Rosado-Acha, 2016 WL 3636672, at *7

(in deciding a Rule 12(b) dismissal motion, taking judicial notice

of documents that “were neither attached to nor incorporated by

reference in Plaintiff’s Complaint or Amended Complaint,” but

which were “pleadings” and “related documents that appear in the

court records of prior litigation” which related to the case before

the court, of which a large number encompassed the court’s “own

orders,” as well as its “own records in the same or an interrelated

case”).

38

(See id.) Thus, the purported prejudice suffered by Plaintiff due

to the untimely mailing of his amended complaint in the February

2022 Action was little more than an unfortunate delay swiftly

addressed by the Court in a manner that spared Plaintiff the injury

of being denied access to the Court as he now alleges.

Hence, given the sequence of events that occurred in the

February 2022 Action, which the Court recognized was not of

Plaintiff’s making, but which could have caused an injury to him,

i.e., foreclosing Plaintiff’s opportunity to amend his complaint,

in conjunction with the Court’s prompt, proactive rectification of

the consequences of that situation, i.e., accepting Plaintiff’s

amended complaint for filing and then considering it, Plaintiff

has not alleged a plausible denial-of-access-court claim. In

turn, Plaintiff has not alleged a plausible Section 1983 claim

against the individual Defendants and such claim is thus DISMISSED

WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii),

1915A(b)(1).

c. Claims Alleging Unlawful Search of Plaintiff’s Mail

The Fourth Amendment protects an individual’s right “to

be secure in [his or her] persons, houses, papers, and effects,

against unreasonable searches and seizures[.]” U.S. CONST. amend.

IV; Katz v. United States, 389 U.S. 347, 350 (1967) (The Fourth

39

“Amendment protects individual privacy against certain kinds of

governmental intrusion.”). “Prisoners, however, have a diminished

expectation of privacy, and ‘the Fourth Amendment proscription

against unreasonable searches does not apply within the confines

of the prison cell.’” Singleton v. City of N.Y., No. 21-CV-2893,

2022 WL 524669, at *4 (S.D.N.Y. Feb. 22, 2022) (quoting Hudson v.

Palmer, 468 U.S. 517, 526 (1984)). Indeed, “[t]his general

principle of a diminished expectation of privacy applies in all

contexts of prison life.” Id. (citing United States v. Amen, 831

F.2d 373, 379–80 (2d Cir. 1987) (citations omitted)).

Thus, while incarcerated, Plaintiff does not retain any

privacy right protected by the Fourth Amendment with respect to

the monitoring or opening of his mail. Singleton, 2022 WL 524669,

at *4 (“Because Plaintiff cannot expect to keep private his

communications while he was in the custody of the DOC, the decision

to disclose this material did not violate the Fourth Amendment’s

prohibition against unreasonable searches.”); Hill v. Griffin, No.

11-CV-6101, 2012 WL 92556, at *4 (W.D.N.Y. Jan. 11, 2012) (sua

sponte dismissing prisoner’s claims alleging that his “outgoing

legal mail, confidential medical mail, incoming legal mail, and

general mail, was intercepted, is not cognizable insomuch as a

Fourth Amendment claim”). Accordingly, Plaintiff’s Fourth

40

Amendment claim arising from the alleged incident on December 9,

2020 that his mail was opened is not plausible and is thus

DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii),

1915A(b)(1).

C. Leave to Amend

The Second Circuit has long advised that leave to replead

should be liberally granted to pro se litigants. See Grullon v.

City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013) (“[A] pro se

complaint generally should not be dismissed without granting the

plaintiff leave to amend at least once . . . .”); see also Chavis

v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “[B]ut amendment

should be denied where the complaint gives no ‘indication that a

valid claim might be stated.’” McKie v. Kornegay, No. 21-1943,

2022 WL 4241355, *3 (2d Cir. Sept. 15, 2022) (quoting Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Here, given that

Plaintiff has already amended his complaint, and further amendment

would be futile, see, e.g., Corines, 2022 WL 4341999, at *11

(citing Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011)),

together with the fact that he has several other Section 1983

complaints pending in this Court (see supra note 2), leave to

further amend the claims in this case is DENIED.

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CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s IFP

Application is GRANTED;

IT IS FURTHER ORDERED that Plaintiff’s claims against the

Jail, and NY State, or alleging a Fourth Amendment deprivation, are sua

sponte DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i)-(ii), 1915A(b)(1), and Plaintiff’s remaining claims are

DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-

(ii), 1915A(b)(1);

IT IS FURTHER ORDERED that leave to further amend the Amended

Complaint is DENIED;

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

§ 1915(a)(3), the Court certifies any appeal from this Memorandum & Order

would not be taken in good faith. 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: (1) ENTER

JUDGMENT accordingly and MARK THIS CASE CLOSED; and, thereafter (2) mail

a copy of this Memorandum & Order and the Judgment to the pro se Plaintiff

at his address of record, including the notation “LEGAL MAIL” on the

envelope.

SO ORDERED.

Dated: November 9th , 2022

Central Islip, New York _/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

42