Culpepper v. Toulon Jr.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KENNETH CULPEPPER,

Plaintiff,

MEMORANDUM AND ORDER

-against- 21-CV-6553(JS)(LGD)

ERROL D. TOULON, JR., Sheriff;

JOHN DOE #1, Warden;

Defendants.

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APPEARANCES

For Plaintiff: Kenneth Culpepper, pro se

223 Gunther Avenue

Bay Shore, New York 11706

For Defendants: No appearances.

SEYBERT, District Judge:

Before the Court is the renewed application to proceed

in forma pauperis (“IFP”) (see IFP App., ECF No. 14) filed by pro

se plaintiff Kenneth Culpepper (“Plaintiff”) in relation to his

civil rights Complaint filed pursuant to 42 U.S.C. § 1983 (“Section

1983”). (See Compl., ECF No. 1.) For the reasons that follow,

the Court GRANTS Plaintiff’s IFP Application IFP and DISMISSES the

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

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

BACKGROUND1

Plaintiff filed his sparse Complaint while incarcerated

at the Willard Drug Treatment Campus and has since been discharged.

(See Compl., ¶ I; Not. of Change of Address, ECF No. 12.)

Plaintiff seeks to challenge the conditions of his confinement

while detained at the Suffolk County Correctional Facility (the

“Jail”) from May 27, 2020 to August 3, 2021 and as related to the

COVID-19 virus (hereafter, the “Virus”). (Id., ¶ II, and at 5-

10.)

More specifically, Plaintiff complains: (1) corrections

officers exposed inmates to the Virus because “there was no

acceptable credible Covid-19 testing regimen established for the

correctional officers before they come in contact with captive

inmates”; (2) upon arriving at the Yaphank Correctional Facility,

he was housed in quarantine for 14 days, during which period he

was locked in a cell for 23 hours a day; and (3) following exposure

to a positive-tested inmate, Plaintiff, along with “the entire

inmate population of the dorm,” was moved back into quarantine for

“16 days because defendant Toulon’s policy is they don’t test

inmates on the weekend.” (Id. at 7-8.)

1 Excerpts from the Complaint are reproduced here exactly as they

appear in the original. Errors in spelling, punctuation, and

grammar have not been corrected or noted.

According to the Complaint, being subjected to the

quarantine protocol “is effectively being punished without having

be cited for misbehavior and without the benefit of a disciplinary

hearing . . . thereby violating Plaintiff’s due process rights.”

(Id. at 9.) Plaintiff also alleges: Defendants did not follow the

“CDC policy of mask wearing and washing hands”; “being denied hand

soap”; and the inability to socially distance. (Id.) As a

result, Plaintiff claims to have suffered emotional distress and

mental anguish for which he seeks to recover a damages award in

the sum of $1 million. (Id. at 10, and at ¶ III.)

DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

The Court finds that Plaintiff is qualified by his

financial status to commence this action without prepayment of the

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

renewed IFP Application (ECF No. 14) is GRANTED.

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

A. Legal Standards

1. 28 U.S.C. § 1915

Section 1915 requires a district court to dismiss an IFP

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, among other things, 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) (citation omitted). 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 obligated 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) (internal quotation

marks and citations omitted) (emphasis in original). “But the

‘special solicitude’ in pro se cases[] has its limits –- to state

a claim, pro se pleadings still must comply with Rule 8 of the

Federal Rules of Civil Procedure, which requires a complaint to

make a short and plain statement showing that the pleader is

entitled to relief.” Wynn v. Regus Mgmt. Grp. LLC, No. 21-CV-

3503, 2021 WL 2018967, at *1 (S.D.N.Y. May 17, 2021) (quoting

Triestman, 470 F.3d at 475).

2. Section 1983

Section 1983 provides that:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State . . . subjects, or causes to be

subjected, any citizen of the United States

. . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured . . . .

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff

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

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

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

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

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

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

omitted). The Court liberally construes the pro se Complaint as

alleging claims challenging the conditions of his confinement and

a deprivation of due process.

B. Application

1. Deliberate Indifference Claims

Plaintiff does not allege whether he was a pre-trial

detainee or post-conviction inmate at the time of the challenged

confinement. This distinction is relevant because Plaintiff’s

deliberate indifference claims arise under the Fourteenth

Amendment if he was a pre-trial detainee, but under the Eighth

Amendment if he was post-conviction inmate. 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. 2020) (citing Darnell v. Pineiro,

849 F.3d 17, 29 (2d Cir. 2017))). The Eighth and Fourteenth

Amendments “embrace different definitions of the ‘subjective’ or

‘mens rea prong.’” Horace, 802 F. App’x at 14 (citing Darnell, 849

F.3d at 35).

In order to establish an Eighth

Amendment claim of deliberate indifference to

safety, a prisoner must show that: (1) he was

subject[ed] 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).

Pagan v. Rodriguez, No. 20-CV-0251, 2020 WL 3975487, at *4 (D.

Conn. July 12, 2020) (citations omitted); Darnell, 849 F.3d at 29

(instructing an Eighth Amendment deliberate indifference claim

requires a plaintiff satisfy two elements: (1) an “objective”

element, requiring showing the challenged conditions are

sufficiently serious; and (2) a “mental” element, requiring

showing officer(s) acted with at least deliberate indifference to

the challenged conditions).

To allege a claim for deliberate indifference to health

and safety under the Fourteenth Amendment’s Due Process Clause, a

plaintiff must allege facts to satisfy two prongs: (1) an

“objective prong” showing plaintiff’s condition of confinement

posed an unreasonable risk of serious harm to 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. See Darnell, 849 F. 3d at 29; see also Charles v. Orange

County, 925 F.3d 73, 86 (2d Cir. 2019).

“[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. Thus, 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.”

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 Defendants

implemented safety measures at the Jail in response to the COVID-19

Virus. And, those measures apparently protected Plaintiff from

contracting the Virus given that he was allegedly exposed to it in

the Jail on several 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 did, Plaintiff

fails to allege that any Jail official acted with the requisite

state of mind. See, e.g., 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 (23-hour daily lock downs for 14-day and 16-day periods

(see Compl. at 6-7)0 violate the Eighth or Fourteenth Amendments

are not plausible. It is well-established that “when a prison

regulation impinges on 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. CV 21-1094, 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). Indeed, “[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, and DOCCS guidelines

“knowingly and disregarding an excessive risk” to plaintiff’s

health or safety); Rivera v. Viger, No. 21-CV-0470, 2021 WL

3269095, *2 (D. Conn. July 30, 2021) (sua sponte dismissing pro se

Section 1983 complaint finding allegations did not establish a

Fourteenth Amendment claim given the failure to allege any direct

personal involvement of any defendant in the asserted indifference

to plaintiff’s health and welfare resulting from his exposure to

the COVID-19 Virus).

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 14 or 16 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 where 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,

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

the restriction on out of cell exercise during Mr. Pape’s [15-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. 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”).

Thus, as is readily apparent, Plaintiff has not

plausibly alleged a deprivation of his constitutional rights under

either the Eighth Amendment or the Fourteenth Amendment.

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

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

2. Due Process Claim

Plaintiff’s allegation that he was denied due process by

placing him in quarantine without a hearing requires little

discussion. “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

sentenced inmate’s procedural due process challenge to confinement

in quarantine for 15 days without a hearing)). Thus, Plaintiff

has not plausibly alleged a due process claim; hence this claim is

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

1915A(b)(1).

3. Personal Involvement

Even if Plaintiff had alleged a constitutional

deprivation, which he has not, such claim would fail because

Plaintiff has not adequately alleged the personal involvement of

either Defendant. 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 Ashcroft v. 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 Constitution.” 556 U.S. 662, 676 (2009). 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. 2010).

In the instant case, although he names Sheriff Toulon

and the Jail’s Warden as Defendants, Plaintiff includes no factual

allegations of conduct or inaction attributable to either

Defendant. (See Compl., in toto.) Rather, it appears Plaintiff

seeks to impose Section 1983 liability upon the Defendants given

their supervisory positions. However, 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). Instead,

“[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. “[B]ald

assertions and conclusions of law” are insufficient to establish

personal involvement. See Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.

1996). Thus, Plaintiff’s conclusory and speculative allegations

that Sheriff Toulon “negligently exposed claimant to the Covid-19

virus” and “does not have an acceptable credible testing regimen

established for the correction officers before they come into

contact with captive inmates” are unavailing to state Section 1983

claims against Sheriff Toulon. Moreover, although Plaintiff names

the Warden in the caption, in the body of the Complaint, there are

no allegations of conduct or inaction attributable to the Warden.

Hence, Plaintiff fails to raise any viable Section 1983 claims

against the Warden. Thus, Plaintiff’s Section 1983 claims against

the Defendants are DISMISSED pursuant to 28 U.S.C. §§

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

III. Leave to Amend the Complaint

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 N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal

quotation marks and citation omitted); see also Patel v. NYU

Langone Hosps., No. 20-112, 2021 WL 4852426, at *4 (2d Cir. Oct.

19, 2021) (absent a finding of futility, a district court should

afford a pro se litigant “at least one opportunity to amend his

complaint to cure its shortcomings”). 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. Because the

2 Moreover, even if Plaintiff had adequately pled supervisory

liability, he has not alleged a plausible constitutional

deprivation against any Defendant for the reasons set forth herein.

defects in Plaintiff’s claims are substantive and would not be

cured if afforded an opportunity to amend, leave to amend the

Complaint is DENIED. Further, given the dismissal of Plaintiff’s

federal claims without leave to amend, the Court declines to

exercise supplemental jurisdiction over any remaining state laws

claims Plaintiff may have; any such claims are thus DISMISSED

WITHOUT PREJUDICE. See 28 U.S.C. § 1367(c)(3); see also Carnegie

Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (a federal court

should generally decline to exercise supplemental jurisdiction

over state law claims if, as is the case here, the complaint

asserts federal question jurisdiction but not diversity

jurisdiction, and the complaint’s federal claims are dismissed at

an early stage in the litigation).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s IFP

application (ECF No. 14) is GRANTED;

IT IS FURTHER ORDERED that the Complaint is DISMISSED

PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1);

IT IS FURTHER ORDERED that the Clerk of the Court shall

ENTER JUDGMENT AND MARK THIS CASE CLOSED;

IT IS FURTHER ORDERED that the Court certifies that,

pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order

would not be taken in good faith, therefore, IFP status is DENIED

for purposes of any appeal. See Coppedge v. United States, 369

U.S. 438, 444-45 (1962); and

IT IS FURTHER ORDERED that the Clerk of Court is directed

to mail a copy of this Order to Plaintiff at his address of record.

SO ORDERED.

/s/ JOANNA SEYBERT

JOANNA SEYBERT, U.S.D.J.

Dated: October 4, 2023

Central Islip, New York