# Scelza v. Porter

> District Court, E.D. New York · August 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10310294

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

. FILE
IN CLR ee D
U.S, RK'S OF □□
UNITED STATES DISTRICT COURT DISTRICT counres, Re
EASTERN DISTRICT OF NEW YORK oe AUG 3 f.
epee eens menses 223,
MICHAEL JOHN SCELZA, 473610, LONG Is) an
Plaintiff, □
ORDER
-against- 23-CV-5825(GRB)(JIMW)
JASON PORTER, BRANDON NOLES,
LUKE MALONE,
Defendants.
pet meee resent ee a Sp apse ices OR
GARY R. BROWN, United States District Judge:
Before the Court is the pro se complaint of Michael John Scelza (“Plaintiff’ or “Scelza”)
filed while incarcerated at the Suffolk County Correctional Facility (“SCCF”) together with an □
application to proceed in forma pauperis (“IFP”) and the required Prisoner Litigation
Authorization form (“PLA”). See Docket Entry “DE” 1-2. Upon review of Plaintiff's filings,
the Court finds that Plaintiff is qualified by his financial status to commence this action without
prepayment of the filing fee. Accordingly, Plaintiff's application to proceed IFP is granted.
However, for the reasons that follow, Plaintiff has not alleged a plausible claim and the
complaint is thus dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
BACKGROUND
1. Summary of the Complaint
Plaintiff's complaint is submitted on the Court’s form for civil rights actions brought
pursuant to Section 1983 and names three inmates at the SCCF as the sole defendants, namely
Jason Porter (“Porter”), Brandon Noles (“Noles”), and Luke Malone (“Malone” and collectively,
“Defendants”). DE 1 at at29I.B. The complaint alleges that, during the lunch meal on
December 1, 2022 at the SCCF’s Riverhead location, Plaintiff “started to have burning pains in
my throat, chest, nose and eyes” after eating about half of his lunch tray. (Ud at5.) According

to the complaint, Malone and Porter served lunch that day and put cleaning products into his
food. (id. at 5-6.) Plaintiff claims to have felt confused and disoriented and noticed the smell
of cleaning products coming from his food tray. (/d.at5.) Plaintiff alleges that he reported
this incident to a corrections officer who “did not believe me and walked away.” (/d.) Plaintiff
alleges that he “kept writing chits and telling staff but things got worse.” (/d.) Later that day,
Plaintiff describes that an Emergency Response Team “came up for a shake down and beat me
with my cuffs on” while they were looking for drugs and Plaintiff noticed that one of the
officers’ breath smelled of alcohol. (Ud)
Plaintiff next claims that, on December 4, 2022, the Defendants again attempted to serve
him a meal tray but Plaintiff refused that tray and requested a new one from a corrections officer.
(id. at 6.) Plaintiff alleges that the Defendants admitted to tampering with his meal tray on
December 1, 2022 and said that did so because Plaintiff “was a rapo”. (/d@.) Plaintiff alleges that
Malone laughed at Plaintiff when he discovered that $73 was taken from his cell and “thought it
was funny to have my food poisoned” so “I splashed water on Luke Malone.” (/d.) A sergeant
then “came in with the S.E.R.T. and cuffed and beat me with punches to my body till my
sneakers came off and threw me in the box for 70 days.” (d.) According to the complaint,
Plaintiff again smelled alcohol on that officer and the officer said “he was going to kill me for
raping little girls and boys.” (Jd)
As a result of the foregoing, Plaintiff claims to have suffered damage to his eyesight.
Plaintiff describes that his “eye sight went fuzzy” and that after a visit to the ophthalmologist at
the SCCF, he was prescribed eyeglasses although he had had “20/20 vision his whole life.” □□□□
qI.A.) For relief, Plaintiff seeks to recover a damages award in the sum of $2 million against
SCCF. (Ud. III.)

LEGAL STANDARDS
The Second Circuit has established a two-step procedure wherein the district court first
considers whether a plaintiff qualifies for in forma pauperis status, and then considers the merits
of the complaint under 28 U.S.C. § 1915(e)(2). Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d
Cir. 1983).
I. In Forma Pauperis
Upon review of the IFP application, the Court finds that Plaintiff is qualified by his
financial status to commence this action without the prepayment of the filing fee. Therefore, the
application to proceed IFP (DE 10) is granted.
Il. Sufficiency of the Pleadings
As Judge Bianco summarized,
A district court is required to dismiss an in forma pauperis complaint if the action
is frivolous or malicious, fails to state a claim on 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)-Gii). The Court is required to dismiss the action
as soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
It is axiomatic that district courts are required to read pro se complaints liberally,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
US. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and
to construe them ““to raise the strongest arguments that [they] suggest [ ].’”
Chavis, 618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d
Cir. 2010)). Moreover, at the pleadings stage of the proceeding, the Court must
assume the truth of “all well-pleaded, nonconclusory factual allegations” in the
complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir.
2010), aff'd, --- US. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009)). However, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements. . . are
not entitled to the assumption of truth.” Jgbal, 556 U.S. at 678 (citation omitted).
Notwithstanding a plaintiff's pro se status, a complaint must plead sufficient facts
to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. The plausibility standard requires “more than a sheer possibility that a
defendant has acted unlawfully.” Jd.; 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.’” Jgbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Plaintiff's factual allegations must also be
sufficient to give the defendant “fair notice of what the . . . claim is and the
grounds upon which it rests,” Twombly, 550 U.S. at 555 (internal quotation marks
and citation omitted).
Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y.
Dec. 31, 2014).
DISCUSSION
Section 1983 provides that: .
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress... .

42 U.S.C. § 1983. Section 1983 “creates no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519
(2d Cir. 1993). To maintain a Section 1983 action, a plaintiff must show that the defendant (1)
acted under color of state law (2) to deprive the plaintiff of a right arising under the Constitution
or federal law. See id. The Court analyzes Plaintiff's Section 1983 claims below.
L Lack of State Action
“T]he United States Constitution regulates only the Government, not private parties.”
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Thus, Plaintiff's Section 1983
claim against the Defendants, three fellow inmates at the SCCF, necessarily fail because the

Defendants are not state actors. See Wing v. Myers, No. 18-CV-11056, 2019 WL 6732967, at *6
(S.D.N.Y. Dec. 11, 2019) (dismissing Section 1983 claims pursuant to 28 U.S.C. § 1915(e)(2)(B)
because the defendants “are inmates, and not state actors. As such, Plaintiff cannot reach their
conduct in this lawsuit.”) (citing Wright v. Stallone, No. 17-CV-487, 2018 WL 671256, at *8 n.8
(N.D.N.Y. Jan. 31, 2018) (dismissing claims against three inmates who “are not state actors” in a
§ 1983 suit (citation omitted)); Lewis v. Doe, No. 13-CV-3190, 2013 WL 5923723, at *1 (E.D.N.Y.
Oct. 31, 2013) (dismissing the plaintiff's § 1983 claims against “another inmate, who is not a state
actor”); see generally Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under-
color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter
how discriminatory or wrongful.” (citation and quotation marks omitted)). Although Section
1983 liability may also extend to a private party who conspires with a state actor to violate a
plaintiff's constitutional rights, Ciambriello, 292 F.3d at 323-24, Plaintiff has not alleged that the
Defendants conspired or jointly acted with a state actor to violate his constitutional rights.!
Accordingly, Plaintiff has not alleged a plausible Section 1983 claim against the
Defendants and these claims are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b).
Il. State Law Claims
Under 28 U.S.C. § 1367(a), “the district courts shall have supplemental jurisdiction over
all other claims that are so related to claims in the action within such original jurisdiction that

' In order to state a Section 1983 conspiracy claim, a plaintiff must allege: “(1) an agreement between a state actor
and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance
of that goal causing damages.” Ciambriello, 292 F.3d at 324-25 (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d
Cir.1999)). As is readily apparent, Plaintiff includes no such allegations.

they form part of the same case or controversy under Article III of the United States
Constitution.” However, courts “may decline to exercise supplemental jurisdiction over a
claim” if “the district court has dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c}(3). The Supreme Court explained that “in 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.” Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Here, given the absence of a plausible federal claim, the interests of judicial economy,
convenience, fairness, and comity weigh in favor of not exercising supplemental jurisdiction at
this time over any state law claims that may be reasonably construed from the complaint.
Accordingly, the Court declines to exercise supplemental jurisdiction over any potential state-
law claims contained in Plaintiffs complaint and Plaintiff may pursue any such claims in statue
court.
Ill. Leave to Amend
A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when
a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo
v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation
omitted). However, leave to amend is not required where it would be futile. See Hill v. Curcione,
657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). In
an abundance of caution in light of Plaintiff's pro se status, he is granted leave to file an amended
complaint in accordance with this order against a proper defendant. Plaintiff may reference any
individual from whom relief by naming that defendant as “John Doe” or “Jane Doe” in the

amended complaint. However, Plaintiff must include some facts concerning any such individuals
pertaining to where, when and how they violated his rights such that their identities may be
ascertained.” Any amended complaint shall be filed within twenty-one (21) days from the date of
this Order, shall clearly be labeled “Amended Complaint”, and shall bear the same docket number
as this Order, 23-CV-5825(GRB)(JMW). Plaintiff is advised that an amended complaint
completely replaces the previous complaint. Therefore, Plaintiff must include all allegations he
wishes to pursue against any defendant(s) in the amended complaint. Plaintiff is ON NOTICE: If
an amended complaint is not filed within the time allowed, judgement shall enter without further
notice and this case will be marked closed.
CONCLUSION
Based on the foregoing, Plaintiffs application to proceed IFP (DE 2) is granted.
However, complaint (DE 1) is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-Gi) and
1915A(b)(1). Plaintiff is granted leave to file an amended complaint in accordance with this
Order. Any amended complaint must be labeled “Amended Complaint,” bear the same docket
number as this Order, 23-CV-5825(GRB)(JMW), and must be filed within twenty-one (21) days
from the date of this Order, If Plaintiff does not file an amended complaint within the time allowed,
judgement shall enter without further notice and this case will be marked closed.
The Clerk of the Court shall mail a copy of this Order to the pro se Plaintiff at his address

? Although Plaintiff has alleged that he seeks relief from SCCF in the relief section of the complaint (DE 1 at { IID,
he did not name SCCF as a defendant. However, given that “‘[t]he Suffolk County Correctional Facility is not a
suable entity.’” Culpepper v. Suffolk Cnty. Corr. Facility, No. 20-CV-4510, 2020 WL 7186765, at *3 (E.D.N.Y.
Dec. 7, 2020) (quoting McCallum v. Suffolk County Corr. Facility Riverhead, No. 19-CV-4591, 2019 WL 6050234,
at *2 (E.D.N.Y. Nov. 8, 2019); also citing Schiff v. Suffolk County Police Dept., No. 12-CV-1410, 2015 WL
1774704, at *6 (E.D.N.Y. Apr. 20, 2015) (“[A]dministrative arms of a municipality cannot be properly sued under §
1983, as the municipality itself is the only proper defendant.”); Wiggins v. Suffolk County Corr. Facility, No. 13-
CV-0569, 2013 WL 1833260, at * 4 (E.D.N.Y. May 1, 2013)(same)), any Section 1983 claim against SCCF that
may be liberally construed from the pro se complaint is not plausible.

of record and note service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
/s/Gary R. Brown
SO ORDERED. _
Gary R. Brown
United States District Judge
Dated: August 3 | , 2023
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310294. Public record. Not legal advice.