Opinion

McMurray

Court: District Court, S.D. New York
Filed: Jul 9, 2026
Cited by: 0 cases

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MARCELLUS McMURRAY,

Plaintiff,

-against-

26-CV-3819 (LLS)

CORRECTION OFFICER LEVIN;

ORDER TO AMEND

CORRECTION OFFICER MORALES;

CORRECTION OFFICER MORGAN;

CORRECTION OFFICER LEVY; MATOS,

Defendants.

LOUIS L. STANTON, United States District Judge:

Plaintiff, who currently is incarcerated in the Rose M. Singer Enhanced Supervised

Housing unit on Rikers Island, brings this action pro se, under 42 U.S.C. § 1983, alleging that

Defendants violated his federally protected rights. By order dated May 21, 2026, the Court

granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of

fees.1 For the reasons set forth below, the Court grants Plaintiff leave to file an amended

complaint within 60 days of the date of this order.

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought

by prisoners who seek relief against a governmental entity or an officer or employee of a

governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s in forma

pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief from a defendant who is

1 Prisoners are not exempt from paying the full filing fee, even when they have been

granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).

immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d

636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject

matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and 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). But the “special

solicitude” in pro se cases, id. at 475 (citation omitted), 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 and

to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court

to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the

complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal,

556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the

elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at

555. After separating legal conclusions from well-pleaded factual allegations, the Court must

determine whether those facts make it plausible – not merely possible – that the pleader is

entitled to relief. Id.

BACKGROUND

Named as Defendants in this complaint are Correction Officers Levin, Morales, Morgan,

Levy, and Matos. The Court understands from the complaint that Plaintiff is disabled; he

provides a document from New York City Health + Hospitals, signed by Dr. Lisa Choleff,

authorizing him, pursuant to the Americans With Disabilities Act (“ADA”), to use the following

“assistive devices”: (1) a cane, from March 20, 2026, through June 30, 2026, and a “wheelchair

for distance only,” from March 20, 2026, through April 30. (ECF 1 at 7.)

On April 29, 2026, while Plaintiff and other detainees were being transported to different

destinations, Officer Levin yelled at Plaintiff to “hurry” as Plaintiff “put on disability equipment

including elbow and arm cushions, back brace, and ankle braces,” and he “blamed” Plaintiff for a

delay that had been caused by a “jail alarm.” (Id.) Plaintiff further states that “during transport to

intake he had a bus pass for the wheelchair bus without cages, yet he and four other inmates were

chained in a cramped area with no movement or air circulation for 20–25 minutes.” (Id.) He also

alleges that Officer Morales called Plaintiff a “crippled” piece of “shit” and expressed animus

towards his disability. (Id. at 5.) Also, on an unspecified date, Plaintiff alleges that he was unable

to get a “new prescription order” of his “medications and medicines,” and that he “submitted a[n]

original bus permit notification for distance only for West Facility, court, hospital, and cane.”

(Id.)

Plaintiff lists injuries to his including back, nose, head, arms, right leg muscles, chest, rib

cage, and a knot on the left side of his face, but he does not explain how he was injured, or who

caused the injuries. Plaintiff seeks $5 million in damages for pain and suffering. (Id.)

DISCUSSION

A. Personal involvement

Plaintiff filed this complaint invoking 42 U.S.C. § 1983. To state viable claims under

Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of

the United States was violated, and (2) the right was violated by a person acting under the color

of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). Additionally, a plaintiff

asserting claims under Section 1983 must allege facts showing the defendants’ direct and

personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’ t of

Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal

involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award

of damages under § 1983.” (internal quotation marks omitted)). A defendant may not be held

liable under Section 1983 solely because that defendant employs or supervises a person who

violated the plaintiff’s rights. See Iqbal, 556 U.S. at 676 (“Government officials may not be held

liable for the unconstitutional conduct of their subordinates under a theory of respondeat

superior.”). Rather, “[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[.]” Tangreti v.

Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).

In the caption of the complaint, Plaintiff names as Defendants Correction Officers Levin,

Morales, Morgan, Levy, and Matos. In the body of the complaint, however, there are no

allegations against Levy, Matos, or Morgan. Plaintiff has thus failed to show what these

individuals allegedly did or failed to do that violated his rights. The Court grants Plaintiff leave

to file an amended complaint to allege facts explaining why they are named as Defendants in this

matter.

B. Deliberate indifference

Plaintiff was a pretrial detainee during the events giving rise to his claims. A pretrial

detainee’s claim of deliberate indifference arises under the Due Process Clause of the Fourteenth

Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Darnell v. Pineiro, 849 F.3d 17,

29, 33 n.9 (2d Cir. 2017). To state such a claim, a plaintiff must satisfy two elements: (1) an

“objective” element, which requires a showing that the challenged conditions are sufficiently

serious, and (2) a “mental” element, which requires a showing that defendant acted with at least

deliberate indifference to those conditions. Darnell, 849 F.3d at 29, 33 n.9.

To satisfy the objective element, a plaintiff must plead facts that “show that the

conditions, either alone or in combination, pose an unreasonable risk of serious damage to his

health” or safety. Id. at 30 (internal quotation marks and citations omitted). To satisfy the mental

element, a pretrial detainee must allege facts showing that a jail official “acted intentionally to

impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk

that the condition posed to the pretrial detainee even though the defendant-official knew, or

should have known, that the condition posed an excessive risk to health or safety.” Id. at 35;

Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (noting that with respect to an alleged

medical need, it must be a sufficiently serious condition that “‘could result in further significant

injury or the unnecessary and wanton infliction of pain.’” (quoting Chance v. Armstrong, 143

F.3d 698, 702 (2d Cir. 1998))). Negligence is not a basis for a Section 1983 claim for a

constitutional violation. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Darnell, 849 F.3d

at 36 (“[A]ny § 1983 claim for a violation of due process requires proof of a mens rea greater

than mere negligence.”).

Plaintiff asserts that suffered physical injuries under circumstances that he does not

describe; that he was transported in a bus in a “cramped area with no movement or air circulation

for 20–25 minutes”; and that he was denied unspecified medications for an unspecified period of

time. Plaintiff does not provide sufficient facts for the Court to determine that Defendants were

deliberately indifferent to his serious medical needs or to his health and safety generally, or that a

particular Defendant knew or should have known of a risk of harm to Plaintiff and disregarded

that risk. The Court grants Plaintiff leave to file an amended complaint to provide any additional

facts to support his deliberate indifference claims.

C. Disability discrimination

Plaintiff may seek to assert a disability discrimination claim. Title II of the Americans

with Disabilities Act (“ADA”) provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by such

entity.” 42 U.S.C. § 12132. Under the Rehabilitation Act, “no otherwise qualified individual with

a disability in the United States . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a). Because the

standards under the ADA and the Rehabilitation Act “are generally the same and the subtle

distinctions between the statutes are not implicated in this case, ‘[the Court will] treat claims

under the two statutes identically’” for the purposes of this order.2 Wright v. N.Y. State Dep’t of

Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d

Cir. 2003)). There is no individual liability under Title II of the ADA or under the Rehabilitation

Act. Garcia v. SUNY Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001). The correct

Defendant for these claims would be the City of New York.

To state a claim, a plaintiff must establish that he is a qualified person with a disability;

that the defendants are subject to the ADA and the Rehabilitation Act; and that he was denied the

opportunity to participate in or benefit from the defendant’s program, services, or activities, or

was otherwise discriminated against because of his disability. Henrietta D. v. Bloomberg, 331

F.3d 261, 272 (2d Cir. 2003). “A qualified individual can base a discrimination claim on any of

three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact;

2 The Court will assume without deciding that the Rehabilitation Act applies.

and (3) failure to make a reasonable accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir.

2009) (internal citations omitted).

Plaintiff may be alleging that Defendants failed to reasonably accommodate his

disabilities, but he does not provide sufficient facts to state such a claim. He alleges that he had a

bus pass for the wheelchair bus without cages, but he ended up on a bus “chained in a cramped

area with no movement or air circulation for 20–25 minutes.” (ECF 1 at 7.) It is unclear from

these facts whether Plaintiff can show that being transported in such a manner could give rise to

an inference that any Defendant failed to reasonably accommodate his disabilities. The Court

grants Plaintiff leave to amend his complaint to provide additional facts, should any exist, to

support a disability discrimination claim.

D. Verbal abuse

Plaintiff alleges that Officer Levin yelled at him and blamed him for a delay that was not

his fault, and that Officer Morales cursed at him and used derogatory language about his

disabilities. Although the use of such language is “indefensible and unprofessional, verbal threats

or abuse are not sufficient to state a constitutional violation cognizable under § 1983.” Jones v.

Rock, No. 12-CV-0447, 2013 WL 4804500, at *19 (N.D.N.Y. Sept. 6, 2013) (quoting Harris v.

Lord, 957 F. Supp. 471, 475 (S.D.N.Y. 1997)); see also Hosannah v. Officer Ameed Saeed, No.

15-CV-03773, 2022 WL 21783687, at *12 (E.D.N.Y. Dec. 28, 2022) (noting that “pre-trial

detainees do not have cognizable § 1983 claims based on allegations of verbal harassment and/or

abuse.”); Carzoglio v. Abrams, No. 18-CV-4198 (PMH), 2020 WL 905630, at *5 (S.D.N.Y. Feb.

25, 2020) (collecting cases and dismissing allegation that defendant threatened to give plaintiff a

“fatal dose” of his medication).

Plaintiff asserts that Officers Levin and Matos yelled at him and spoke to him in a

disparaging manner, but verbal abuse, while reprehensible, does not give rise to a claim under

Section 1983. Accordingly, the Court dismisses Plaintiff’s claims arising from verbal threats or

abusive language for failure to state a claim on which relief may be granted. See 28 U.S.C.

§ 1915(e)(2)(b)(ii).

LEAVE TO AMEND

Plaintiff proceeds in this matter without the benefit of an attorney. District courts

generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its

defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.

2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because Plaintiff may be able to

allege additional facts to state valid claims pursuant to Section 1983 and/or the ADA, the Court

grants Plaintiff 60 days’ leave to amend his complaint to detail his claims.

In the “Statement of Claim” section of the amended complaint form, Plaintiff must

provide a short and plain statement of the relevant facts supporting each claim against each

defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff

should include all of the information in the amended complaint that Plaintiff wants the Court to

consider in deciding whether the amended complaint states a claim for relief. That information

should include:

a) the names and titles of all relevant people;

b) a description of all relevant events, including what each defendant did or failed to do,

the approximate date and time of each event, and the general location where each

event occurred;

c) a description of the injuries Plaintiff suffered; and

d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory

relief.

Essentially, Plaintiff’s amended complaint should tell the Court: who violated his

federally protected rights and how; when and where such violations occurred; and why Plaintiff

is entitled to relief.

Because Plaintiff’s amended complaint will completely replace, not supplement, the

original complaint, any facts or claims that Plaintiff wants to include from the original complaint

must be repeated in the amended complaint.

CONCLUSION

Plaintiff is granted leave to file an amended complaint that complies with the standards

set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit

within sixty days of the date of this order, caption the document as an “Amended Complaint,”

and label the document with docket number 26-CV-3819 (LLS). An Amended Civil Rights

Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to

comply within the time allowed, and he cannot show good cause to excuse such failure, the

complaint will be dismissed for failure to state a claim upon which relief may be granted.

SO ORDERED.

Dated: July 8, 2026

New York, New York Leni Lo Stentrn _

Louis L. Stanton

U.S.D.J.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

(In the space above enter the full name(s) of the plaintiff(s).) AMENDED

COMPLAINT

-against- under the Civil Rights Act,

42 U.S.C. § 1983

Jury Trial: O Yes oO No

(check one)

Ci CD

(dn the space above enter the full name(s) of the defendant(s). Ifyou

cannot fit the names of all of the defendants in the space provided,

please write “see attached” in the space above and attach an

additional sheet of paper with the full list of names. The names

listed in the above caption must be identical to those contained in

Part I. Addresses should not be included here.)

I. Parties in this complaint:

A. List your name, identification number, and the name and address of your current place of

confinement. Do the same for any additional plaintiffs named. Attach additional sheets of paper

as necessary.

Plaintiff’ s Name

WH eee

Current Institution,

Address eee

B. List all defendants’ names, positions, places of employment, and the address where each defendant

may be served. Make sure that the defendant(s) listed below are identical to those contained in the

above caption. Attach additional sheets of paper as necessary.

Defendant No. 1 Name —s—aiesesesa (aes

Where Currently Employed eee

Address ee

Address __________________________________________________________

_________________________________________________________________

Defendant No. 3 Name ___________________________________________ Shield #_________

Where Currently Employed __________________________________________

Address __________________________________________________________

_________________________________________________________________

Who did

what? Defendant No. 4 Name ___________________________________________ Shield #_________

Where Currently Employed __________________________________________

Address __________________________________________________________

_________________________________________________________________

Defendant No. 5 Name ___________________________________________ Shield #_________

Where Currently Employed __________________________________________

Address __________________________________________________________

_________________________________________________________________

II. Statement of Claim:

State as briefly as possible the facts of your case. Describe how each of the defendants named in the

caption of this complaint is involved in this action, along with the dates and locations of all relevant events.

You may wish to include further details such as the names of other persons involved in the events giving

rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims,

number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary.

A. In what institution did the events giving rise to your claim(s) occur?

_______________________________________________________________________________

B. Where in the institution did the events giving rise to your claim(s) occur?

_______________________________________________________________________________

C. What date and approximate time did the events giving rise to your claim(s) occur?

_______________________________________________________________________________

D. Facts:__________________________________________________________________________

_____________________________________________________________________________________

What

happened _____________________________________________________________________________________

_____________________________________________________________________________________

Was _____________________________________________________________________________________

anyone

else _____________________________________________________________________________________

involved?

_____________________________________________________________________________________

Who else

saw what

happened? III. Injuries:

If you sustained injuries related to the events alleged above, describe them and state what medical

treatment, if any, you required and received.

______________________________________________________________________________________

_____________________________________________________________________________________

______________________________________________________________________________________

IV. Exhaustion of Administrative Remedies:

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires that “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” Administrative remedies are also known as grievance procedures.

A. Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility?

Yes ____ No ____

events giving rise to your claim(s).

_____________________________________________________________________________________

______________________________________________________________________________________

B. Does the jail, prison or other correctional facility where your claim(s) arose have a grievance

procedure?

Yes ____ No ____ Do Not Know ____

C. Does the grievance procedure at the jail, prison or other correctional facility where your claim(s)

arose cover some or all of your claim(s)?

Yes ____ No ____ Do Not Know ____

If YES, which claim(s)?

_______________________________________________________________________________

D. Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose?

Yes ____ No ____

If NO, did you file a grievance about the events described in this complaint at any other jail,

prison, or other correctional facility?

Yes ____ No ____

E. If you did file a grievance, about the events described in this complaint, where did you file the

grievance?

_______________________________________________________________________________

1. Which claim(s) in this complaint did you grieve?

______________________________________________________________________________

_______________________________________________________________________________

2. What was the result, if any?

_______________________________________________________________________________

3. What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to

the highest level of the grievance process.

_______________________________________________________________________________

F. If you did not file a grievance:

1. If there are any reasons why you did not file a grievance, state them here:

_________________________________________________________________________

________________________________________________________________________

2. If you did not file a grievance but informed any officials of your claim, state who you

informed, when and how, and their response, if any:

G. Please set forth any additional information that is relevant to the exhaustion of your administrative

remedies.

Note: You may attach as exhibits to this complaint any documents related to the exhaustion of your

administrative remedies.

V. Relief:

State what you want the Court to do for you (including the amount of monetary compensation, if any, that

you are seeking and the basis for such amount).

Rev. 01/2010

VI. Previous lawsuits:

A. Have you filed other lawsuits in state or federal court dealing with the same facts involved in this

action?

Yes NO

B. If your answer to A is YES, describe each lawsuit by answering questions | through 7 below. (If

there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using

the same format.)

1. Parties to the previous lawsuit:

Plaintiff

Defendants

2.Court (if federal court, name the district; if state court, name the county)

3. Docket or Index number

Name of Judge assigned to your case.

5. Approximate date of filing lawsuit

6. Is the case still pending? Yes === No____>

If NO, give the approximate date of disposition.

7. What was the result of the case? (For example: Was the case dismissed? Was there

judgment in your favor? Was the case appealed?)

C. Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?

Yes No

s —_——

D. If your answer to C is YES, describe each lawsuit by answering questions | through 7 below. (If

there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using

the same format.)

1. Parties to the previous lawsuit:

Plaintiff

Defendants

2. Court (if federal court, name the district; if state court, name the county)

3. Docket or Index number

4, Name of Judge assigned to your case. eee

5. Approximate date of filing lawsuit

Rev. 01/2010

6. Is the case still pending? Yes ____ No ____

If NO, give the approximate date of disposition_________________________________

7. What was the result of the case? (For example: Was the case dismissed? Was there

judgment in your favor? Was the case appealed?) ______________________________

________________________________________________________________________

_________________________________________________________________________

I declare under penalty of perjury that the foregoing is true and correct.

Signed this day of , 20 .

Signature of Plaintiff _____________________________________

Inmate Number _____________________________________

Institution Address _____________________________________

_____________________________________

Note: All plaintiffs named in the caption of the complaint must date and sign the complaint and provide

their inmate numbers and addresses.

I declare under penalty of perjury that on this _____ day of _________________, 20__, I am delivering

this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for

the Southern District of New York.

Signature of Plaintiff: _____________________________________

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.