Hudson v. Gioe

EASTERN DISTRICT OF NEW YORK

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MICHAEL HUDSON,

Plaintiff, MEMORANDUM & ORDER

24-CV-1695(JMA)(ST)

-against-

FILED

CHRISTOPHER M. GIOE, SUFFOLK COUNTY CLERK

POLICE DEPT., JOHN DOES # 1-6, DARWIN NEITO,

4:10 pm, Jun 26, 2024

SHAUN SULLIVAN, SUFFOLK COUNTY DISTRICT

ATTORNEY OFFICE, JOHN DOE, M. ROONEY, U.S. DISTRICT COURT

M. KASZUBA, SUPREME COURT JUDGE TIMOTHY EASTERN DISTRICT OF NEW YORK

MAZZEI, SUPREME COURT JUDGE LINDA J. LONG ISLAND OFFICE

KEVINS, SUFFOLK COUNTY JAIL WARDEN, and

MEDICAL STAFF AMY MALAVE,

Defendants.

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AZRACK, United States District Judge:

Before the Court is the civil rights complaint filed by incarcerated pro se plaintiff Micheal

Hudson (“Plaintiff”) pursuant to 42 U.S.C. § 1983 (“Section 1983”) against various individuals

involved in Plaintiff’s arrest and the related, on-going state court criminal prosecution. (ECF No.

1.) Plaintiff also filed two motions to proceed in forma pauperis (“IFP”) and the required Prisoner

Litigation Authorization form. (ECF Nos. 2, 8-9.) For the reasons that follow, the Court grants

Plaintiff’s IFP applications and sua sponte dismisses the complaint, in part, pursuant to 28 U.S.C.

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

I. BACKGROUND1

Plaintiff’s brief, handwritten complaint is brought pursuant to Section 1983 and names

individuals and entities involved in his July 19, 2023, arrest, pre-trial detention at the Suffolk

County Correctional Facility (the “Jail”), and state court criminal prosecution. (ECF No. 1.)

1 All material allegations in the complaint are assumed to be true for the purpose of this Order. See, e.g.,

Rogers v. City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a pro se complaint for sua sponte

dismissal, a court is required to accept the material allegations in the complaint as true).

Suffolk County Police Department (“SCPD”); SCPD Officers Darwin Neito (“P.O. Neito”) and

Shaun Sullivan (“P.O. Sullivan”); six unidentified Suffolk County police officers (John Does # 1-

6); the Suffolk County District Attorney’s Office (“SCDAO”); three assistant district attorneys, M.

Rooney (“ADA Rooney”), M. Kaszuba (“ADA Kaszuba”), and a “John Doe” (“ADA Doe”); two

Supreme Court Judges, Timothy Mazzei (“Judge Mazzei”) and Linda J. Kevins (“Judge Kevins”);

the Suffolk County Jail Warden (“Warden”) and “Medical Staff Amy Malave” (“Malave” and

collectively with all Defendants, “Defendants”). (Id. at 1-3.)

Plaintiff’s Complaint alleges the following facts:2

On July 19th 2023 at about 9:15 pm Suffolk County Police Officers

surrounded a vehicle I was gathering belongings out of and at that point the officers

opened the door grabbed my wrist punched me multiple times in the face then threw

me toward the ground. Once these officers got me to the ground they viciously

attacked me more by kicking and hitting me with flashlights in the face. These

officers beat me for about 3 to five minutes, during this foray another set of

detectives came and requested my name even after the group of officers who

originated the blitz took everything out of my pockets including my identification.

Those detective instructed the other officers to take me to the local hospital to be

treated. The detectives from the 5th Precinct who tried to interview me at the

hospital questioned me about an incident that was unrelated to my current situation

and when I could not be of any assistance they told me I would have other things

to worry about since I could not be of any help. The next morning after being

treated for my injuries at Southside Hospital I was brung to District Court in Central

Islip. When I was arraigned in Court it was brought to my attention that these

officers fabricated a drug offense to secure my detention at the local county jail. At

that time the Assistance District Attorney was advised by my attorney (Christopher

Cassar) that the officers who dealt with my arrest failed to perform certain

procedures like test or weigh the allege substance to verify it authenticates before

they ordered me to be detained. On July 24, 2023 detectives from SCPD came and

interviewed me at the local jail which was against protocol, seeking my assistance

with becoming a confidential informant, I expressed to the officers that I did not

feel comfortable working with them especially after the beat me. On July 25, 2023

Christopher M. Gioe came on an attorney visit to see what was going on but his

true intentions was to see if I changed my mind about the earlier offer, I pleaded

my innocence to my attorney but the whole time Mr. Gioe had possession of a lab

2 Excerpts from the complaint are reproduced herein exactly as they appear in the original. Errors in spelling,

punctuation, and grammar have not been corrected or noted.

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there was no controlled substance found. About 10 days later I was produced to

Riverhead County Court but never actually produced to court Mr. Gioe brung me

there to see if I would talk to the Assistance District Attorney and the same

detectives that came to the jail on the 24th. I was later discharged because the

alleged drug that I possessed was in fact no a controlled substance. Once I was

released Mr. Gioe gave me numerous of ultimatum to either cooperate or the other

option was go to trial, the plea bargain that Mr. Gioe promised me which was Drug

Court quickly disappeared. On 12-18-2023 Mr. Gioe took advantage of a situation

where the Local Jail doesn’t give certain medications (Suboxone) before court runs

and tricked me into taking a plea by saying he would have to start trial at second

call. Mr. Gioe did this to have me off his caseload. But Mr. Gioe never advised me

that he went to school with the lead detective on my case, he never attempted to

advocate for me to the courts as well as about my drug addiction.

Since arraignment court the District Attorneys office has insisted that there

be bail set and on three occasion there has been their reason is that if I’m convicted

of the offenses pending against me I would be eligible for persistent offender

sentencing which is enhanced but due to the fact that my top charges are all non

qualifying bail offenses, drug charges. I cannot be sentenced as a persistent

offender Penal Law 60.04 and 70.70 neither has a category for persistent so

technicality I cannot be sentence as a persistent and it also makes me non bail

eligible. I’ve been detained on 3 different occasions illegally.

While Ive been detained at Suffolk County Jail in Riverhead NY 110 Center

Dr. they have been contributing to the illegal act the rest of the judicial system have

been administering. When I send mail out to local lawyers or to any advocate or

misconduct agency they return my mail and never gets to where I need it to go the

medical department neglects proper treatment when I submit medical requests

stating medical issues that I currently have and one doctor has even made an issue

worst so Im in more pain. Violation of due process rights, equal protection, false

arrest, malicious prosecution, fabrication of evidence, conspiracy, failure to train

and supervise failure to intervene.

(-Id-. at 4-6.)

In the space that calls for a description of any injuries sustained and any medical treatment

required and/or provided, Plaintiff wrote:

After the Assault be the Suffolk County detectives I went to Southside hospital and

was treated there for a cyst that broke. When I arrived at Yaphank Correctional the

medical staff sent me back to the hospital. Since that attack Ive been diagnosed

with ptsd, social anxiety disorder and receive medication. Suffered physical

injuries, mental injuries that led to taking severe medication, financial damages,

loss of work opportunities, deprivation of liberty and privacy, TERROR, FEAR,

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relationships with family mainly kids, mother and girlfriend.

(Id. at 4.) For relief, Plaintiff “would like for all defendant in this case to be removed from their

positions, also would like compensation for the mental and emotional trama would like to receive

damages for the loss of work opportunities and family relationships I missed out on while

incarcerated.” (Id. at 7.)

II. LEGAL STANDARDS

A. Leave to Proceed IFP

To qualify for IFP status, the Supreme Court has long held that “an affidavit is sufficient

which states that one cannot because of his poverty pay or give security for the costs [inherent in

litigation] and still be able to provide himself and dependents with the necessities of life.” Adkins

v. E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted).

The purpose of the statute permitting litigants to proceed IFP is to ensure that indigent persons

have equal access to the judicial system. Davis v. NYC Dep’t of Educ., 10-CV-3812, 2010 WL

3419671, at *1 (E.D.N.Y. August 27, 2010) (citing Gregory v. NYC Health & Hosps. Corp., 07-

CV-1531, 2007 WL 1199010, at *1 (E.D.N.Y. Apr. 17, 2007)). The determination of whether an

applicant qualifies for IFP status is within the discretion of the district court. DiGianni v. Pearson

Educ., 10-CV-0206, 2010 WL 1741373, at *1 (E.D.N.Y. Apr. 30, 2010) (citing Choi v. Chemical

Bank, 939 F. Supp. 304, 308 (S.D.N.Y. 1996)).

B. Dismissal Under the Prison Litigation Reform Act or IFP Statute

The Prison Litigation Reform Act requires a district court to screen a civil complaint

brought by a prisoner against a governmental entity or its agents and dismiss the complaint, or any

portion of the complaint, if the complaint is “frivolous, malicious, or fails to state a claim upon

which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Similarly, the IFP statute requires a court

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state a claim upon which relief may be granted, or (iii) seeks monetary relief from a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss the action as

soon as it makes such a determination. 28 U.S.C. § 1915A(b).

C. Section 1983

Section 1983 provides that

[e]very 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. Section 1983 “is not itself a source of substantive rights, but a method for

vindicating federal rights elsewhere conferred by those parts of the United States Constitution and

federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Thomas

v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). “To state a claim under § 1983, a plaintiff must allege

two elements: (1) ‘the violation of a right secured by the Constitution and laws of the United

States,’ and (2) ‘the alleged deprivation was committed by a person acting under color of state

law.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) (quoting

Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004)); see Buon v. Spindler, 65 F.4th 64, 78

(2d Cir. 2023); see also 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.” (internal quotation marks and citation omitted)).

D. Plaintiff’s Pro Se Status

Pro se submissions are afforded wide interpretational latitude and should be held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In

addition, the Court is required to read a plaintiff’s pro se complaint liberally and interpret it as

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Cir. 2011) (per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

The Supreme Court has held that pro se complaints need not even plead specific facts;

rather the complainant “need only give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks

and citations omitted); see also FED. R. CIV. P. 8(e) (“Pleadings must be construed so as to do

justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citations omitted). The plausibility standard requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. at 678. While “‘detailed factual

allegations’” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” Id. at 678 (quoting Twombly, 550

U.S. at 555).

III. DISCUSSION

A. Plaintiff’s IFP Application is Granted

Upon review of Plaintiff’s declarations in support of his applications to proceed IFP, the

Court finds that Plaintiff is qualified to commence this action without prepayment of the filing fee.

28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s applications to proceed IFP (ECF Nos. 8-9) are

granted.

B. P.O. Neito, P.O. Sullivan, ADA Rooney, ADA Kasuba, ADA Doe, Judge Mazzei, Judge

Kevins, Warden, and Malave are Dismissed for lack of Personal Involvement

To “establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff

must show . . . the defendant’s personal involvement in the alleged constitutional deprivation.”

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and prove ‘that each Government-official defendant, through the official’s own individual actions,

has violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting

Ashcroft, 556 U.S. at 676). A Section 1983 claim that fails to allege the personal involvement of

the defendant fails as a matter of law. See, e.g., id. at 619-20; Kravitz v. Purcell, 87 F.4th 111, 129

(2d Cir. 2023); Murphy v. Hughson, 82 F.4th 177, 183 n.5 (2d Cir. 2023).

Here, Plaintiff identified twelve of the eighteen Defendants named in the caption of the

complaint. Of those twelve identified Defendants, only two (Gioe and SCDAO) are included in

the body of the complaint. Wholly absent from the complaint are any allegations of conduct or

inaction attributable to Defendants except for Gioe and SCDAO. (See generally ECF No. 1.)

Simply naming the defendants against whom relief is sought is insufficient because “bald

assertions and conclusions of law” do not establish personal involvement. Leeds v. Meltz, 85 F.3d

51, 53 (2d Cir. 1996). “Dismissal is appropriate where a defendant is listed in the caption, but the

body of the complaint fails to indicate what the defendant did to the plaintiff.” Dean v. Annucci,

No. 22-CV-0746, 2023 WL 2325074, at *6 (N.D.N.Y. Mar. 2, 2023) (internal quotation marks

omitted); see, e.g., Hickman v. City of New York Dep’t of Corr., No. 24-CV-1754, 2024 WL

2784641, at *2 (S.D.N.Y. May 28, 2024) (dismissing Section 1983 claims against defendants

because they “are not mentioned in the body of the complaint, and no facts are alleged showing

what [they] did or failed to do that violated Plaintiff’s rights”).

Even affording the pro se complaint a liberal construction, Plaintiff has not plausibly

alleged the personal involvement of these Defendants. Indeed, as the Second Circuit made clear

in Tangreti v. Bachmann, “there is no special rule for supervisory liability. Instead, a plaintiff must

plead and prove ‘that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.’” 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S.

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ADA Doe, Judge Mazzei, Judge Kevins, Warden, and Malave are implausible and are dismissed

without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1).

C. SCPD and SCDAO are Dismissed as Nonsuable Entities

Plaintiff names SCPD and SCDAO as Defendants. Under New York law, however,

departments that are merely administrative arms of a municipality cannot be sued because they

lack a legal identity separate and apart from the municipality. See, e.g., Henry v. Cnty. of Nassau,

6 F.4th 324, 336 (2d Cir. 2021) (affirming dismissal of claims against the Nassau County Police

Department) (citing Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007)). For that

reason, courts routinely dismiss claims against SCPD and SCDAO. See, e.g., Martinez v. Cty. of

Suffolk, 999 F. Supp. 2d 424, 429 (E.D.N.Y. 2014) (dismissing claims against SCPD); Adames v.

Cnty. of Suffolk Court, No. 18-CV-4069, 2019 WL 2107261, at *2 (E.D.N.Y. May 14, 2019)

(dismissing claims against SCDAO). Thus, Plaintiff’s Section 1983 claims against SCPD and

SCAO are not plausible and are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b).

D. Gioe is Dismissed Because he was not a State Actor

Plaintiff names his criminal defense attorney, Gioe, as a defendant and purports to allege a

Section 1983 claim against him. However, it is well-established that Section 1983 “excludes from

its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins.

Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citation omitted); see also

Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States

Constitution regulates only the Government, not private parties.”). Plaintiff does not allege

whether Gioe was appointed by the Court to represent him in the state criminal proceedings, but

that fact is of no moment. Even court-appointed defense attorneys are private parties who

generally do not act under color of state law. See Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir.

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functions as counsel to defendant do not act ‘under color of state law’ and therefore are not subject

to suit under 42 U.S.C. § 1983.”); Pittman v. Brosi, No. 22-CV-01757, 2022 WL 2161401, at *3

(E.D.N.Y. June 15, 2022) (dismissing Section 1983 claims against “court-appointed defense

attorney in the underlying state court criminal proceedings [because] she is a private party who

does not act under color of state law”); see also Polk County v. Dodson, 454 U.S. 312, 325 (1981)

(holding that a “public defender does not act under color of state law when performing a lawyer’s

traditional functions as counsel to a defendant in a criminal proceeding”).

A private actor such as Gioe, may, however, act under the color of state law for purposes

of Section 1983 if he was a “willful participant in joint activity with the State or its agents.”

Ciambriello, 292 F.3d at 324 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)).

Section 1983 liability may also extend to a private party who conspires with a state actor to violate

a plaintiff’s constitutional rights. Id. at 323-24. “To establish joint action, a plaintiff must show

that the private citizen and the state official shared a common unlawful goal; the true state actor

and the jointly acting private party must agree to deprive the plaintiff of rights guaranteed by

federal law.” Anilao v. Spota, 774 F. Supp. 2d 457, 498 (E.D.N.Y. 2011) (internal quotation marks

and citation omitted). Alternatively, to show that there was a conspiracy between a private actor

and the state or its agents, a plaintiff must show “(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 in

furtherance of that goal causing damages.” Ciambriello, 292 F.3d at 324-25.

Here, Plaintiff includes no factual allegations from which the Court could reasonably

construe state action by Gioe through joint action or a conspiracy with a state actor to deprive

Plaintiff of his constitutional rights. Thus, Plaintiff has not plausibly alleged that Gioe was a state

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§§ 1915(e)(2)(B)(i)-(ii), 1915A(b).

E. Unidentified Police Officer Defendants

Plaintiff names six “John Doe” defendants who are alleged to be employed as Suffolk

County police officers (“John Doe PO Defendants”). According to the complaint, on July 19,

2023, at approximately 9:15 p.m., Plaintiff was surrounded by those Suffolk County police officers

as he was removing belongings from a vehicle and was physically assaulted. (ECF No. 1 at 4.)

Plaintiff asserts that those officers grabbed his wrist, threw him to the ground, kicked him, and hit

him in the face with flashlights. (Id.) Though thin, the Court declines to dismiss Plaintiff’s Section

1983 claims against the John Doe PO Defendants at this time.

Accordingly, the Court orders service of process upon the John Doe PO Defendants by the

United States Marshal Service (“USMS”). However, the USMS will need more information to

serve the John Doe PO Defendants. Consistent with Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d

Cir. 1997) (per curiam), the Suffolk County Attorney is directed to assist with identifying the John

Doe PO Defendants who are alleged to have been employed by the Suffolk County Police

Department and to have interacted with Plaintiff on or about July 19, 2023, as set forth in the

complaint. Accordingly, the Clerk of the Court shall forthwith serve a copy of the complaint

together with this order on the Suffolk County Attorney. The Suffolk County Attorney’s Office

shall then (1) attempt to ascertain the identities of the John Doe PO Defendants and (2) file a letter

by July 26, 2024, that provides the names of the John Doe PO Defendants and the address(es)

where they may be served.3 Following the Suffolk County Attorney’s compliance with that

3 The Suffolk County Attorney need not undertake to defend or indemnify the John Doe PO Defendants at

this juncture. This Order merely provides a means by which the Plaintiff may name and properly serve those

defendants as instructed by the Second Circuit in Valentin.

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police officers will supplant the John Doe PO Defendants.

F. Municipal Liability

Given Plaintiff’s pro se status, the Court liberally construes Plaintiff’s claims against SCPD

and SCDAO as seeking municipal liability against Suffolk County. Any such claim is deficient.

A claim for municipal liability under Section 1983 must comply with Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658 (1978) and its progeny. “Monell expressly

prohibits respondeat superior liability for municipalities . . . meaning that a plaintiff must

demonstrate that ‘through its deliberate conduct, the municipality was the “moving force” behind

the injury alleged.’” Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 97-98 (2d Cir.

2020) (quoting Bd. of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)). This requires

Plaintiff to “show that he suffered the denial of a constitutional right that was caused by an official

municipal policy or custom.” Frost v. New York City Police Dep’t, 980 F.3d 231, 257 (2d Cir.

2020) (internal quotations omitted). A policy or custom may be established by any of the

following:

(1) a formal policy officially endorsed by the municipality; (2) actions taken by

government officials responsible for establishing the municipal policies that

caused the particular constitutional deprivation in question; (3) a practice so

consistent and widespread that, although not expressly authorized, constitutes a

custom or usage of which a supervising policy-maker must have been aware; or

(4) a failure by policymakers to provide adequate training or supervision to

subordinates to such an extent that it amounts to deliberate indifference to the rights

of those who come into contact with the municipal employees.

Alwan v. City of New York, 311 F. Supp. 3d 570, 578 (E.D.N.Y. 2018) (internal quotations

omitted); see Ying Li v. City of New York, 246 F. Supp. 3d 578, 636 (E.D.N.Y. 2017) (similar).

“[A] single incident of unconstitutional activity is not sufficient to impose liability under Monell,

unless proof of the incident includes proof that it was caused by an existing, unconstitutional

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F.3d 72, 80 (2d Cir. 2016) (quoting City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)

(plurality)) (brackets omitted); see DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“[A] single

incident in a complaint, especially if it involved only actors below the policy-making level, does

not suffice to show a municipal policy.”).

Here, even affording the pro se complaint a liberal construction, there are no factual

allegations from which the Court may reasonably infer that the conduct or inaction of which

Plaintiff complains was caused by a policy or custom of Suffolk County. See Mitchell, 841 F.3d

at 80 (dismissing Monell claim for lack of a municipal policy or custom underlying the challenged

conduct); see also Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (“[A]

plaintiff must allege facts tending to support, at least circumstantially, an inference that such a

municipal policy or custom exists.”). Accordingly, any Section 1983 claim asserted in the

complaint against Suffolk County fails to state a claim and is thus implausible because Plaintiff

has not alleged the existence of a relevant municipal policy or custom.

G. Leave to Amend

“[A] pro se complaint should not be dismissed without the Court granting leave to amend

at least once when a liberal reading of the complaint gives any indication that a valid claim might

be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (internal quotation marks and

brackets omitted). At the same time, a district court may deny a pro se plaintiff leave to amend

when amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

The Court has carefully considered whether to grant Plaintiff leave to amend his complaint.

Given Plaintiff’s pro se status, the Court grants him leave to amend the complaint consistent with

this Order. Plaintiff’s amended complaint must (1) be labeled as an “amended complaint,”

(2) include a caption naming the defendants, (3) bear the same docket number as this Order, 24-

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identity of a defendant, he may name that defendant as “John Doe” or “Jane Doe” and must then

include sufficient factual allegations to ascertain that defendant’s identity. Plaintiff is advised that

“an amended complaint . . . supersedes the original, and renders it of no legal effect.” Harris v.

City of N.Y., 186 F.3d 243, 249 (2d Cir. 1999) (internal quotation marks omitted). Thus, any

amended complaint Plaintiff files should include all allegations he wishes to pursue against each

defendant he names. Plaintiff may include in an amended complaint any allegations from his April

11, 2024, letter.4 (ECF No. 11.)

IV. CONCLUSION

For the forgoing reasons, the Plaintiff’s applications to proceed IFP are granted. However,

Plaintiff’s Section 1983 claims against Gioe, P.O. Neito, P.O. Sullivan, ADA Rooney, ADA

Kaszuba, ADA Doe, Judge Mazzei, Judge Kevins, the Warden and Malave are dismissed without

prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and 1915A(b)(1) for failure to state a claim

and with leave to amend as set forth above. Plaintiff’s Section 1983 claims against SCPD and

SCDAO are dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and

1915A(b)(1). Plaintiff’s remaining Section 1983 claims against the John Doe PO Defendants shall

proceed and the Court orders service of process by the USMS once their identities are ascertained

as set forth above. See supra Section III.E. Plaintiff is granted leave to file an amended complaint

consistent with this Order on or before July 26, 2024.

4 Plaintiff filed a four-page letter on April 11, 2024, entitled “Amendment of Civil Rights Case” whereby he

apparently sought to amend his complaint. (ECF No. 11.) To the extent that Plaintiff attempted to amend his

complaint, the Court rejects that piecemeal attempt to do so.

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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).

The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff and to

the Suffolk County Attorney. The mailing to Plaintiff shall be sent to his address of record in an

enveloped marked “Legal Mail.”

SO ORDERED.

Dated: June 26, 2024

Central Islip, New York

(/s/ JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE

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