Volant v. Nassau County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Scange Volant,

Plaintiff,

-v- 2:24-cv-7882

(NJC) (ST)

Nassau County and Dr. Henning,

Defendants.

MEMORANDUM AND ORDER

NUSRAT J. CHOUDHURY, United States District Judge:

Before the Court is a motion to proceed in forma pauperis (“IFP”) filed by pro se plaintiff

Scange Volant (“Volant”) in relation to his Complaint filed while incarcerated at the Ulster

County Correctional Facility, which complains about the conditions of his confinement while

incarcerated at the Nassau County Correctional Center (the “Jail”). (IFP Mot., ECF No. 5;

Compl., ECF No. 1.) For the reasons that follow, the Court grants the IFP motion and dismisses

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

with leave to file an amended complaint as set forth below.

BACKGROUND

On November 8, 2024, Volant filed a Complaint against Nassau County and Dr. Henning

(together, “Defendants”) using the Court’s civil rights complaint form for actions brought

pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Compl.) Volant did not pay the filing fee, nor

did he file a motion to proceed IFP at that time. Accordingly, by Notice of Deficiency dated

November 14, 2024, the Court instructed Volant to either pay the filing fee or complete and file

an IFP application and Prisoner Litigation Authorization form (“PLA”) within fourteen days in

order for his case to proceed. (See Not., ECF No. 2.) On November 27, 2024, Volant timely filed

his IFP motion but did not file the PLA. (See IFP Mot.) Accordingly, by Notice of Deficiency

dated December 5, 2024, the Court instructed Volant to complete and return the enclosed PLA

within fourteen days and, on December 16, 2024, Volant did so. (See PLA, ECF No. 7.)

I. The Complaint1

The Complaint alleges that, during mid-September 2023, while Volant was incarcerated

at the Jail, he had an allergic reaction to the wool blanket provided to him and suffered severe

itching and burning over his body, which interrupted his sleep. (Compl. ¶ II.) Volant asserts that

he “put in a sick call” and met with a doctor who said he would request for Volant to receive a

cotton blanket. (Id.) Volant was also prescribed a cream and some “pills for the allergy.” (Id.)

Volant claims that he did not receive the cotton blanket and put in five different requests “over

the course of months” to no avail. (Id.) As a result, Volant seeks to recover a damages award in

the sum of $750,000 for pain and suffering and a punitive damages award in the sum of

$150,000. (Id. ¶ III.)

LEGAL STANDARDS

I. In Forma Pauperis

Upon review of Volant’s IFP Motion (IFP Mot.), the Court finds that Volant is qualified

by his financial status to commence this action without the prepayment of the filing fee.

Therefore, the IFP Motion is granted.

II. Sufficiency of the Pleadings

Given that Volant is proceeding IFP, the Court is required to “review . . . as soon as

1 Excerpts from the Complaint have been reproduced here exactly as they appear in the original.

Errors in spelling, punctuation, and grammar have not been corrected or noted.

2

practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a

governmental entity . . . .” 28 U.S.C. § 1915A(a).2 At the pleading stage, 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, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S.

662, 678–80 (2009)), aff’d, 569 U.S. 108 (2013).

This Court is required to construe pleadings “filed by pro se litigants liberally and

interpret them to raise the strongest arguments that they suggest.” Hunter v. McMahon, 75 F.4th

62, 67 (2d Cir. 2023) (quotation marks and citation omitted). “[A] pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 2019) (citing Erickson v. Pardus, 551

U.S. 89, 94 (2007)) (quotation marks omitted).

Nevertheless, 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 (citation

omitted). The plausibility standard requires “more than a sheer possibility that a defendant has

acted unlawfully.” Id.; accord We The Patriots USA, Inc. v. Connecticut Off. of Early Childhood

Dev., 76 F.4th 130, 144 (2d Cir. 2023). “Threadbare recitals of the elements of a cause of action,

2 The term “prisoner” is defined in this statute to include “any person incarcerated or detained in

any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,

violations of criminal law or the terms and conditions of parole, probation, pretrial release, or

diversionary program.” 28 U.S.C. § 1915A(c).

3

supported by mere conclusory statements . . . are not entitled to the assumption of truth.” Iqbal,

556 U.S. at 678–79 (citation omitted). 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 557). The factual allegations of

a complaint must 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 (quotation marks omitted).

If a liberal reading of the complaint “gives any indication that a valid claim might be

stated,” the court must grant leave to amend the complaint. Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir. 2000). If, however, amendment of the complaint would not cure the substantive

defects of the claim, leave to amend should be denied. Id.

DISCUSSION

I. Section 1983 Claims

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 itself 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) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)); accord Jean-

Baptiste v. United States Dep’t of Just., No. 23-441, 2024 WL 1193062, at *1 (2d Cir. Mar. 20,

2024) (noting that Section 1983 does not provide an independent source of substantive rights).

To maintain a Section 1983 action, a plaintiff must show that the defendant (1) acted under color

4

of state law (2) to deprive the plaintiff of a right arising under the Constitution or federal law.

See Sykes, 13 F.3d at 519. Here, the Complaint does not allege a plausible Section 1983 claim

because it does not plausibly allege any deprivation of a right afforded by the U.S. Constitution

and, even if it did, it does not sufficiently allege the personal involvement of Dr. Henning or any

plausible claim for municipal liability against Nassau County. (See Compl.)

A. Absence of a Constitutional Deprivation

Volant’s claim that he suffered an allergic reaction to the wool blanket provided to him

and that his requests for a cotton blanket were ignored do not rise to a constitutional deprivation

under either the Eighth Amendment or the Fourteenth Amendment.3 Liberally construed,

Volant’s allegations suggest that he challenges both the conditions of his confinement and the

sufficiency of the medical care provided to him. (See Compl. ¶ II.)

A conditions of confinement claim and a sufficiency of medical care claim each require

that a plaintiff satisfy both an objective prong and a subjective prong. Darnell, 849 F.3d at 29.

For a conditions of confinement claim, the objective prong is the same under both the Eighth and

Fourteenth Amendments and requires a showing that the challenged conditions were sufficiently

serious such “that the conditions, either alone or in combination, pose an unreasonable risk of

3 Although Volant does not allege whether he is a pre-trial detainee or a convicted prisoner, all

“‘[p]risoners and detainees have constitutionally protected rights to receive humane conditions of

confinement, including adequate food, clothing, shelter, medical care, and security.’” Arroyo v.

Nassau Cnty. Corr., No. 22-CV-5611, 2022 WL 16636774, at *3 (E.D.N.Y. Nov. 2, 2022)

(quoting McKoy v. Suffolk County Corr. Fac., No. 21-CV-1873, 2022 WL 1092385, at *2

(E.D.N.Y. Apr. 12, 2022)) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). If Volant is a

pre-trial detainee, he is entitled to the protections of the Fourteenth Amendment’s due process

clause; whereas, if he is serving a post-conviction sentence, he is protected by the Eighth

Amendment’s prohibition on cruel and unusual punishment. See Darnell v. Pineiro, 849 F.3d 17,

29 (2d Cir. 2017).

5

serious damage to his health.” Id. at 30. “There is no static test to determine whether a

deprivation is sufficiently serious; instead, ‘the conditions themselves must be evaluated in light

of contemporary standards of decency.’” Id. (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d

Cir. 1995) (add’l citation omitted). The objective prong for a denial of adequate medical care

claim under both the Fourteenth and Eighth Amendments requires the alleged deprivation in

medical care be “sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). A

deprivation in medical care is sufficiently serious if (1) “the prisoner was actually deprived of

adequate medical care” and (2) “the inadequacy in medical care is sufficiently serious.” Id. at

279–80. The latter inquiry “contemplates a condition of urgency such as one that may produce

death, degeneration, or extreme pain.” Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019);

see also Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (holding that the medical need

must be a “sufficiently serious” condition that “could result in further significant injury or the

unnecessary and wanton infliction of pain”).

As for the subjective prong, for a conditions of confinement claim and for a denial of

adequate medical care claim, the Eighth Amendment requires a showing “that a prison official

had the requisite ‘culpable intent,’ which is present if the official ‘has knowledge that an inmate

faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable

measures to abate the harm.’ As such, ‘mere negligence will not suffice.’” Smith v. New York

State, No. 23-cv-6601, 2024 WL 4746554, at *2 (2d Cir. Nov. 12, 2024) (summary order quoting

Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996)) (emphasis in original). Under

the Fourteenth Amendment, the subjective prong requires that the plaintiff “show[] that the

officers acted with deliberate indifference to the challenged condition.” Darnell, 849 F.3d at 29.

6

In other words, “a detainee asserting a ‘claim for deliberate indifference to his medical needs can

allege either that the defendants knew that failing to provide the complained of medical treatment

would pose a substantial risk to his health or that the defendants should have known that failing

to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.’”

Culbreth, 2025 WL 35059, at *6 (quoting Darby v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021))

(emphasis in original).

Here, the Complaint’s allegations do not demonstrate that both prongs are met, whether

Volant’s claim is construed as a conditions of confinement claim or a sufficiency of medical care

claim brought under either the Eighth Amendment or the Fourteenth Amendment. Taking as true

the allegation that the Jail-issued wool blanket caused Volant to suffer skin irritations that

disrupted his sleep is an objectively serious condition, he has not plausibly alleged that it that

posed an “unreasonable risk of serious damage to his health,” Darnell, 849 F.3d at 30, or that the

harm was “sufficiently serious” in that it “could result in further significant injury or the

unnecessary and wanton infliction of pain,” Harrison, 219 F.3d at 136; see Compl.; Charles, 925

F.3d at 86; see also Estelle v. Gamble, 429 U.S. 97, 104 (1976)) (“[D]eliberate indifference to

serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain.’”).

Nor does the Complaint allege any facts from which the Court could reasonably find the

subjective prong is met under either the Eighth Amendment’s “culplable intent” standard or the

Fourteenth Amendment’s “knew or should have known” standard. Because the Complaint fails

to allege a constitutional deprivation, the Complaint’s Section 1983 claim is implausible and

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

7

B. Personal Involvement

Even if Volant had alleged a constitutional deprivation, his claim against Dr. Henning

must be dismissed in the absence of any allegations suggesting his personal involvement. In an

action brought under Section 1983, a plaintiff must allege the personal involvement of each

defendant in the claimed constitutional deprivation. See Farid v. Ellen, 593 F.3d 233, 249 (2d

Cir. 2010). An “individual cannot be held liable for damages under [Section] 1983 ‘merely

because he held a high position of authority.’” Back v. Hastings on Hudson Union Free Sch.

Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.

1996)). Instead, “a plaintiff must plead and prove ‘that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution’” or laws of the

United States. Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S.

at 676). When a Section 1983 claim fails to allege the personal involvement of the defendant, it

fails as a matter of law. See Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010) (summary

order citing Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)).

Here, although the Complaint names Dr. Henning as a defendant in the caption, he is not

mentioned in the body of the Complaint. (See Compl.) This is fatal to Volant’s claims. See Dove

v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) (“[W]here the complaint names a

defendant in the caption but contains no allegations indicating exactly how the defendant

violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that

defendant should be granted.”), aff’d sub nom. Dove v. O’Hare, 210 F.3d 354 (2d Cir. 2000).

In the absence of any allegations against Dr. Henning, the Complaint does not plausibly allege a

Section 1983 claim against him and it is thus dismissed without prejudice pursuant to 28 U.S.C.

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

8

C. Municipal Liability

In order to prevail on a Section 1983 claim against a municipal entity, a plaintiff must

show: “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right;

(3) causation; (4) damages; and (5) that an official policy of the municipality caused the

constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell v.

Dep’t of Social Servs., 436 U.S. 658, 690-91 (1978)). Thus, “a municipality can be held liable

under Section 1983 if the deprivation of the plaintiff’s rights under federal law is caused by a

governmental custom, policy, or usage of the municipality.” Jones v. Town of E. Haven, 691

F.3d 72, 80 (2d Cir. 2012). “The Supreme Court has made clear that ‘a municipality cannot be

made liable’ under § 1983 for acts of its employees ‘by application of the doctrine of respondeat

superior.’” Roe, 542 F.3d at 36 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986)).

“Rather, a plaintiff must identify either an ‘express rule or regulation,’ a practice that ‘was so

persistent or widespread as to [carry] the force of law,’ or misconduct of ‘subordinate

employees’ that ‘was so manifest as to imply the constructive acquiescence of senior policy-

making officials.’” Swinton v. Livingston Cnty., No. 21-1434, 2023 WL 2317838, at *1 (2d Cir.

Mar. 2, 2023) (summary order quoting Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir.

2015)).

Here, the Complaint does not allege any facts from which this Court could reasonably

construe that the challenged conduct was undertaken pursuant to any custom, policy, or practice

of Nassau County. Thus, Volant’s claims against Nassau County are implausible and are

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

II. State Law Claims

Under 28 U.S.C. § 1367(a), “the district courts shall have supplemental jurisdiction over

9

all other claims that are so related to claims in the action within such original jurisdiction that

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). Where “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, because the Complaint contains no plausible federal claim, the interests of judicial

economy, convenience, fairness, and comity weigh against exercising supplemental jurisdiction

over any state law claims in the Complaint. Accordingly, the Court declines to exercise

supplemental jurisdiction over any potential state law claims in Volant’s Complaint.

III. 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. Cty. of New York, 579 F.3d 176, 183 (2d Cir. 2009) (quotation marks and citation

omitted). In an abundance of caution, the Court grants Volant leave to file an amended complaint

to afford him an opportunity to allege a plausible claim. If Volant chooses to amend his

complaint, he shall: (1) do so within thirty (30) days from the date of this Memorandum and

Order; (2) clearly labeled it “Amended Complaint”; (3) and include the same docket number as

this Order, No. 24-cv-7882. Volant must include those individuals who were allegedly involved

in the deprivation of his federal rights as defendants in the caption and in the statement of claim.

10

If Volant does not know the name of a defendant, he may refer to that individual as “John Doe”

or “Jane Doe” in both the caption and the body of the amended complaint. Further, Volant is

reminded to review the Court’s guidance set forth above concerning the requirements to allege

facts supporting plausible claims against his conditions of confinement and the sufficiency of the

medical care provided to him, as well as the requirements to allege plausible claims against

Nassau County. (See supra at I.A., I.C.) Volant is cautioned that the amended complaint will

completely replace, not supplement, the original complaint, so any facts or claims that Volant

wants to include from the original complaint must be repeated in the amended complaint. If

Volant does not timely file an amended complaint, judgment shall enter without further notice

and this case will be closed. Alternatively, Volant may pursue any valid claims he may have,

including negligence or medical malpractice, against the Defendants in state court.

CONCLUSION

For the reasons stated above, this Court grants Volant’s IFP motion (ECF No. 5), and

dismisses the Complaint (ECF No. 1) without prejudice pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(i)–(ii) and 1915A(b)(1) and with leave to file an amended complaint.

The Clerk of the Court shall mail a copy of this Order to Volant at his address of record

in an envelope marked “Legal Mail” and shall record such mailing on the docket.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

11

would not be taken in good faith and therefore IFP status is denied for the purpose of any appeal.

See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

Dated: Central Islip, New York

February 23, 2025

/s/ Nusrat J. Choudhury

NUSRAT J. CHOUDHURY

United States District Judge

12