Shidagis v. Broome County Sheriff's Office

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

SHANISE SHIDAGIS,

Plaintiff,

v. 3:22-CV-1300

(DNH/ML)

BROOME COUNTY SHERIFF’S

OFFICE, Medical Doctor,

Defendant.

_____________________________________________

APPEARANCES: OF COUNSEL:

SHANISE SHIDAGIS

Plaintiff, Pro Se

900 Vestal Parkway East

Vestal, New York 138501

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent a pro se complaint in the above captioned action together with an

application to proceed in forma pauperis, filed by Shanise Shidagis (“Plaintiff”) to the Court for

review. (Dkt. Nos. 1, 2.) For the reasons discussed below, I grant Plaintiff’s in forma pauperis

1 On January 10, 2023, Plaintiff commenced two other civil actions in this district (No.

3:23-CV-0031 (BKS/ML), and No. 3:23-CV-0032 (BKS/ML)). In those actions, Plaintiff listed

her address as 202 Oak Hill Avenue, Endicott, New York 13760. Plaintiff is reminded that she

must immediately notify the Court of any change of address consistent with N.D.N.Y. L.R.

10.1(c)(2), and that her failure to notify the Court of a change of address could result in the

involuntary dismissal of her cases for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) and

N.D.N.Y. L.R. 41.2(b).

application, and recommend that Plaintiff’s Complaint be dismissed in its entirety with leave to

amend. (Dkt. Nos. 1, 2.)

I. BACKGROUND

Construed as liberally2 as possible, Plaintiff’s Complaint alleges that the doctor provided

by defendant Broome County Sheriff’s Department (“Defendant”) was negligent to her medical

needs. (See generally Dkt. No. 1.) Plaintiff’s Complaint is difficult to decipher but she appears

to allege that on an unspecified date, she was placed in a single cell—presumably at Broome

County Jail—and Defendant’s medical doctor who examined Plaintiff, did not order that Plaintiff

be taken to the hospital or conduct the appropriate tests of Plaintiff’s blood, which resulted in “a

very bad sickle cell crisis.” (Dkt. No. 1 at 4.)

Based on these factual allegations, Plaintiff asserts one claim of medical negligence.

(Dkt. No. 1 at 3.) As relief, Plaintiff seeks $20,000. (Id. at 3-4.)

II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS

“When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the

standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).3 After reviewing Plaintiff’s in

2 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

3 The language of that section is ambiguous because it suggests an intent to limit

availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1)

(authorizing the commencement of an action without prepayment of fees “by a person who

submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts

have construed that section, however, as making in forma pauperis status available to any litigant

who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed.

Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard.

Therefore, Plaintiff’s application to proceed in forma pauperis is granted.4

III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

In addition, the Court shall dismiss any action where the Complaint fails to allege facts

plausibly suggesting subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1988) (holding that subject matter jurisdiction is

a “threshold question that must be resolved . . . before proceeding to the merits.”); Humphrey v.

Syracuse Police Dep’t, 758 F. App’x 205, 205-06 (2d Cir. 2019) (citing United States v. Bond,

762 F.3d 255, 263 (2d Cir. 2014)) (“[b]efore deciding any case on the merits, a district court

must determine that it has subject matter jurisdiction over the matter.”); Koziel v. City of

Yonkers, 352 F. App’x 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal

of complaint on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF,

15-CV-5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31, 2018) (dismissing on initial review,

action challenging state court mortgage foreclosure judgment because the court lacked

jurisdiction); Eckert v. Schroeder, Joseph & Assoc., 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005)

(citing Hughes v. Patrolmens Benevolent Assn of the City of N.Y., Inc., 850 F.2d 876, 881 (2d

Cir. 1988), cert. denied, 488 U.S. 967 (1988)) (“[a] court shall, sua sponte, dismiss a complaint

4 Plaintiff is reminded that, although her application to proceed in forma pauperis has been

granted, she is still required to pay fees that she may incur in this action, including copying

and/or witness fees.

for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter

jurisdiction.@).

“In reviewing a complaint . . . the court must accept the material facts alleged in the

complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .

. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe her

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes

of action be dismissed.

The Court lacks subject matter jurisdiction over this case. Federal courts are courts of

limited jurisdiction and must independently verify the existence of subject matter jurisdiction

before proceeding to the merits. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546

(2005); Doe v. United States, 833 F.3d 192, 196 (2d Cir. 2016). “Congress has granted district

courts original jurisdiction over cases in which there is a federal question, see 28 U.S.C. § 1331,

and certain cases between citizens of different states, so long as the requirements of complete

diversity and amount in controversy are met, see 28 U.S.C. § 1332.” Purdue Pharma L.P. v.

Kentucky, 704 F.3d 208, 213 (2d Cir. 2013). “[F]ailure of subject matter jurisdiction is not

waivable and may be raised at any time by a party or by the court sua sponte. If subject matter

jurisdiction is lacking, the action must be dismissed.” Lyndonville Sav. Bank & Tr. Co. v.

Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) (citations omitted); see also Arbaugh v. Y & H

Corp., 546 U.S. 500, 514 (2006); Fed. R. Civ. P. 12(h)(3). The plaintiff bears the burden of

establishing subject matter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000).

Here, there is no “federal question” jurisdiction because “[c]laims for negligence and

medical malpractice arise under state law,” not federal law, “and a federal court generally will

not have original jurisdiction over the claims unless complete diversity exists.”5 See Urena v.

5 To the extent that Plaintiff’s Complaint is construed liberally as asserting a claim of

medical indifference pursuant to the Fourteenth Amendment (assuming that Plaintiff was

incarcerated as a pre-trial detainee in the custody of Defendant) and 42 U.S.C. § 1983, I still

recommend dismissal for failure to state a claim. “There are two prongs to such a claim: an

objective prong showing that the challenged conditions were sufficiently serious to constitute

objective deprivations of the right to due process, and a subjective prong . . . or mental element

prong, showing that the officer acted with at least deliberate indifference to the challenged

conditions.” Burrell v. Maciol, 19-CV-1629, 2022 WL 16755840, at *9 (N.D.N.Y. Aug. 26,

2022) (Baxter, M.J.) (quoting Drew v. City of New York, 18-CV-10719, 2022 WL 19705, at *5

(S.D.N.Y. Jan. 3, 2022)) (internal quotation marks omitted), report and recommendation adopted

by, 2022 WL 4719172 (N.D.N.Y. Oct. 3, 2022) (McAvoy, J.). “[E]vidence of mere negligence

will not suffice. Thus, mere medical malpractice is not tantamount to deliberate indifference, but

it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an

act or failure to act . . . that evinces a conscious disregard for a substantial risk of serious harm.”

Fenton v. Provow, 20-CV-1564, 2022 WL 3904110, at *4 (N.D.N.Y. Aug. 5, 2022) (Stewart,

M.J.) (quoting Charles v. Orange Cnty., 925 F.3d 73, 87 (2d Cir. 2019)), report and

recommendation adopted by, 2022 WL 3908799 (N.D.N.Y. Aug. 30, 2022) (Sannes, J.). The

Complaint alleges mere negligence and thus—to the extent it is construed as alleging a claim for

medical indifference—fails to state a claim upon which relief may be granted.

Wolfson, 09-CV-1107, 2010 WL 5057208, at *13 (E.D.N.Y. Dec. 6, 2010) (citation omitted); see

also Wilson v. Neighborhood Restore Dev., 18-CV-1172, 2018 WL 2390143, at *3 (E.D.N.Y.

May 18, 2018) (citing Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160,

182 (2d Cir. 2015)) (holding that “breach of contract, breach of the warranty of habitability,

negligence, personal injury and fraud . . . are state law claims.”). In addition, because the

complaint alleges that Plaintiff and Defendant are citizens of New York (Dkt. No. 1 at 1-2), there

is no diversity jurisdiction. Lever v. Lyons, 16-CV-5130, 2021, WL 302648, at *9 (E.D.N.Y.

Jan. 28, 2021) (no diversity jurisdiction where parties were all citizens of New York). Moreover,

the amount at stake is not more than $75,000. (Dkt. No. 1 at 4.)

As a result, I recommend that Plaintiff’s claims be dismissed for lack of subject matter

jurisdiction.6

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

6 The Court also notes that “[a]lthough a municipality is subject to suit pursuant to section

1983, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal police

department does not have the capacity to be sued as an entity separate from the municipality in

which it is located.” White v. Syracuse Police Dep’t, 18-CV-1471, 2019 WL 981850, at *3

(N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d

223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of Utica, 13-CV-

1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of

Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a

municipal entity is merely a subdivision of the municipality and has no separate legal existence.

Therefore, municipal departments like the Department of Social Services are not amenable to

suit and no claims lie directly against the Department.”)), report and recommendation adopted

by, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). Thus, Defendant is not a proper

party amenable to suit.

justice so requires.”). An opportunity to amend is not required, however, where “the problem

with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).7

Although I have serious doubts about whether Plaintiff can amend to assert an actionable

claim and given that this is Plaintiff’s initial complaint, out of an abundance of caution, I

recommend that Plaintiff be permitted to amend her Complaint to assert a claim of medical

indifference.

If Plaintiff chooses to file an amended complaint, she should note that the law in this

circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient

unless they contain some specific allegations of fact indicating a deprivation of rights, instead of

a litany of general conclusions that shock but have no meaning.’” Hunt v. Budd, 895 F. Supp.

35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.

1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y.

7 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth

facts that give rise to the claims, including the dates, times, and places of the alleged underlying

acts, and each individual who committed each alleged wrongful act. In addition, the revised

pleading should allege facts demonstrating the specific involvement of any of the named

defendants in the constitutional deprivations alleged in sufficient detail to establish that they

were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.

1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing

Complaint, and must be a wholly integrated and complete pleading that does not rely upon or

incorporate by reference any pleading or document previously filed with the Court. See Shields

v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an

amended complaint ordinarily supersedes the original and renders it of no legal effect.”).

ACCORDINGLY, it is

ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is

GRANTED only for purposes of filing and any appeal unless the trial court certifies in

writing that the appeal is not taken in good faith; and it is further respectfully

RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE AND WITH

LEAVE TO REPLEAD Plaintiff’s Complaint (Dkt. No. 1) because the Court lacks subject

matter jurisdiction over the claims asserted therein; and it is further

ORDERED that the Clerk of the Court shall file a copy of this order, report, and

recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.8

8 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within

which to file written objections to the foregoing report.” Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: January _17, 2023

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

? If you are proceeding pro se and served with this report, recommendation, and order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).