# Volant v. Nassau County

> District Court, E.D. New York · February 23, 2025

URL: https://www.frixlaw.com/law-library/cases/10804487

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10804487

## How later opinions describe it (automated extraction)

- noting that Section 1983 does not provide an independent source of substantive rights
- 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”

## Opinion text

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.

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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).

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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

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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).

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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.

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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).

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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).

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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

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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.

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10804487. Public record. Not legal advice.