UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X MICHAEL JOHN SCELZA, 473610,
Plaintiff, ORDER -against- 23-CV-8106(GRB)(JMW)
SUFFOLK COUNTY CORRECTIONAL FACILITY, INMATE FELIX MARTINEZ, CORRECTIONAL OFFICERS and E.S.U. OF THE JAIL,
Defendants. -------------------------------------------------------------------X GARY R. BROWN, United States District Judge: Before the Court is the pro se complaint of Michael John Scelza (“Plaintiff”) filed while incarcerated at the Suffolk County Correctional Facility (“Jail”) together with an application to proceed in forma pauperis (“IFP”) and the required Prisoner Litigation Authorization form (“PLA”). See Docket Entry “DE” 1-2. Upon review of Plaintiff’s filings, the Court finds that Plaintiff is qualified by his financial status to commence this action without prepayment of the filing fee. Accordingly, Plaintiff’s application to proceed IFP is granted. However, for the reasons that follow, Plaintiff has not alleged a plausible claim and the complaint is thus dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). BACKGROUND Plaintiff’s complaint is submitted on the Court’s civil rights complaint form for actions brought pursuant to 42 U.S.C. § 1983 (“Section 1983”) and is brief. See DE 1. Plaintiff names the Jail, another inmate at the Jail, Felix Martinez (“Martinez”), and unnamed “Correctional Officers and E.S.U. of the Jail” (“John Does” and collectively “Defendants”) as the Defendants. Id. at 1, and at 2 ¶ I. B. In its entirety, Plaintiff’s Statement of Claim alleges:1
1 Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling, punctuation or grammar will not be corrected or noted. 5:30 P.M. on tier 4 south west. August 17, 2023 inmate Felix Martinez from number 18 cell punched me in my right ear. He also pulled me down to the floor where I hit my head. After going to medical and getting meds put in right ear the jails E.S.U. beat me for a third time. All beatings are from the same E.S.U. and Correctional Officers. It’s two and two officers. Lost my hearing in my right ear completely. Doctor down at medical said, “Your membrane is completely severed in your right ear.” Still waiting to go to the outside doctor for it. This jail is covering things up. So what is the sense of having video here. The jail also neglected to give me the options to press charges more than once. Also never answered two inmate grievances I filed.
Id. at ¶ IV (emphasis in original). As a result of the foregoing, Plaintiff alleges that he has suffered a “broken ear drum and severed membrane in [his] right ear” for which he received medication for one week. Plaintiff claims that he cannot hear out of his right ear at all and is awaiting an appointment with an ears, nose and throat doctor. Id. at ¶ IV.A. For relief, Plaintiff seeks an award in the sum of $10 million. Id. ¶ V. LEGAL STANDARDS The Second Circuit has established a two-step procedure wherein the district court first considers whether a plaintiff qualifies for in forma pauperis status, and then considers the merits of the complaint under 28 U.S.C. § 1915(e)(2). Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983). I. In Forma Pauperis Upon review of the IFP application, the Court finds that Plaintiff is qualified by his financial status to commence this action without the prepayment of the filing fee. Therefore, the application to proceed IFP (DE 2) is granted.
2 II. Sufficiency of the Pleadings As Judge Bianco summarized, A district court is required to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii). The Court is required to dismiss the action as soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii). It is axiomatic that district courts are required to read pro se complaints liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and to construe them “‘to raise the strongest arguments that [they] suggest [ ].’” Chavis, 618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)). Moreover, at the pleadings stage of the proceeding, 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, 123 (2d Cir. 2010), aff’d, --- U.S. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 678 (citation omitted).
Notwithstanding a plaintiff’s pro se status, 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. The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id.; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). 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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Plaintiff’s factual allegations must also 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 (internal quotation marks and citation omitted).
Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y. Dec. 31, 2014). DISCUSSION Plaintiff' complaint challenges the conditions of his confinement at the Jail and, as
3 liberally construed, appears to allege a failure to protect claim and a denial of adequate medical care. Such claims are properly brought pursuant to 42 U.S.C. § 1983 (“Section 1983”). 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 “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). To maintain a Section 1983 action, a plaintiff must show that the defendant (1) acted under color of state law (2) to deprive the plaintiff of a right arising under the Constitution or federal law. See id. Here, Plaintiff’s Section 1983 claims necessarily fail for the reasons that follow. A. Lack of State Action Plaintiff’s Section 1983 claim against Martinez, another inmate, fails because Martinez does not act under color of state law. As this Court explained to Plaintiff in an earlier case he brought in this Court, Scelza v. Porter, No. 23-CV-5825(GRB)(JMW), 2023 WL 5625449, at *3 (E.D.N.Y. Aug. 31, 2023), judgment entered, 2023 WL 7553882 (E.D.N.Y. Oct. 31, 2023): [T]he United States Constitution regulates only the Government, not private parties. Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Thus, Plaintiff’s Section 1983 claim against the Defendants, three fellow inmates at the SCCF, necessarily fail because the Defendants are not state actors. See Wing v. Myers, No. 18-CV-11056, 2019 WL 6732967, at *6 (S.D.N.Y. Dec. 11, 2019) (dismissing Section 1983 claims pursuant to 28 U.S.C. § 1915(e)(2)(B) because the defendants “are inmates, and not state actors. As such, Plaintiff cannot reach
4 their conduct in this lawsuit.”) (citing Wright v. Stallone, No. 17-CV-487, 2018 WL 671256, at *8 n.8 (N.D.N.Y. Jan. 31, 2018)) (dismissing claims against three inmates who “are not state actors” in a § 1983 suit (citation omitted)); Lewis v. Doe, No. 13-CV-3190, 2013 WL 5923723, at *1 (E.D.N.Y. Oct. 31, 2013) (dismissing the plaintiff’s § 1983 claims against “another inmate, who is not a state actor”); see generally 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.” (citation and quotation marks omitted)). Although Section 1983 liability may also extend to a private party who conspires with a state actor to violate a plaintiff’s constitutional rights, Ciambriello, 292 F.3d at 323-24, Plaintiff has not alleged that the Defendants conspired or jointly acted with a state actor to violate his constitutional rights.
Accordingly, for these same reasons, Plaintiff has not alleged a plausible Section 1983 claim against Martinez and this claim is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b). B. Lack of Capacity to be Sued Similarly, the Jail, as an administrative arm of the municipality, Suffolk County, is without an independent legal identity and cannot be sued. Sturgis v. Suffolk County Jail, No. 12-CV-5263, 2013 WL 245052, *2 (E.D.N.Y. Jan. 22, 2013) (sua sponte dismissing Section 1983 claims against the Jail, among others, because it is an “administrative arm[ ] of the County of Suffolk [ ] [and] lack[s] the capacity to be sued”) (citing Carthew v. County of Suffolk, 709 F. Supp. 2d 188, 195 (E.D.N.Y. 2010). Given Plaintiff’s pro se status and the special solicitude afforded such litigants, the Court has considered whether he has alleged a plausible claim when construed as against the municipality, Suffolk County, and finds that he has not. As this Court has recently explained: Municipal governments, like Suffolk County, may be held liable under Section 1983 ‘only for unconstitutional or illegal policies, not for the illegal conduct of their employees.’ Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Thus, Suffolk County could only face liability if Plaintiff alleged a pattern or
5 practice of such conduct. To state a claim against a municipality under Section 1983, ‘the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom.’ (id.) (internal quotation marks and citation omitted).
Parker v. Suffolk County Police Dep’t, No. 22-CV-3969(GRB)(AYS), 2023 WL 5047784, at *6 (E.D.N.Y. Aug. 7, 2023). Here, as is readily apparent, Plaintiff’s sparse complaint is devoid of any such allegations. Plaintiff has not pled that the allegedly unconstitutional medical treatment - - or lack thereof - - were the result of a policy or practice of Suffolk County. See, e.g., Parker, 203 WL 5047784, at *6 (citing Joyner-El v. Giammarella, No. 09-CV-2731 (NRB), 2010 WL 1685957, at *7-8 (S.D.N.Y. Apr. 15, 2010) (dismissing any Monell claim because the plaintiff had “pointed to no policy or custom on the part of New York City that might plausibly have caused any of his alleged constitutional injuries”); Overhoff v. Ginsburg Dev., L.L.C., 143 F. Supp. 2d 379, 389 (S.D.N.Y. 2001) (dismissing Section 1983 complaint against municipality due to plaintiff’s failure to “allege that her constitutional rights were violated pursuant to any municipal policy or custom”). Nor has Plaintiff included any facts in support of his failure to protect claim that would allow this Court to reasonably infer that a policy, practice, or custom of Suffolk County gave rise to the alleged attack. Accordingly, even when liberally construed as against Suffolk County, Plaintiff’s Section 1983 claims are not plausible and are thus dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1). III. Lack of Personal Involvement Insofar as Plaintiff seeks to impose liability on the John Doe Defendants, he has not alleged their personal involvement, rendering his Section 1983 claims implausible. “[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of
6 damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (internal quotations marks omitted). Simply naming the individuals against whom relief is sought is insufficient because “bald assertions and conclusions of law” are do not establish personal involvement. See Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). Indeed, “‘[d]ismissal 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) (quoting Cipriani v. Buffardi, No. 06-CV-889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (add’l citation omitted)). Where 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). Here, as is readily apparent, Plaintiff has omitted any factual allegations of conduct or inaction attributable to any of the John Does. See DE 1 in toto. In the absence of any alleged personal involvement by these Defendants, Plaintiff has not set forth a Plausible Section 1983 claims against them. See, e.g., Booker v. Suffolk Cnty. Dep’t of Corr., No. 23-CV-732(GRB)
(AYS), 2023 WL 7663288, at *4 (E.D.N.Y. Nov. 15, 2023) (dismissing Section 1983 claims where there were no allegations of conduct or in action attributable to any of the individual defendants). Thus, Plaintiff’s Section 1983 claims against the John Does are dismissed without prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii); 1915A(b)(1). IV. State Law Claims Under 28 U.S.C. § 1367(a), “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that
7 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). The Supreme Court explained that “in the usual case in which 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, given the absence of a plausible federal claim, the interests of judicial economy, convenience, fairness, and comity weigh in favor of not exercising supplemental jurisdiction at this time over any state law claims that may be reasonably construed from the complaint. Accordingly, the Court declines to exercise supplemental jurisdiction over any potential state- law claims contained in Plaintiff’s complaint. V. 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. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation omitted). However, leave to amend is not required where it 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). Here, in an abundance of caution, Plaintiff is granted leave to file an amended complaint to afford him an opportunity to allege as plausible claim against a proper defendant. If Plaintiff chooses to amend
his complaint, he shall do so within thirty (30) days from the date of this Order. Any amended complaint shall be clearly labeled “Amended Complaint” and shall bear the same docket number
8 as this Order, 23-CV-8106(GRB)(JMW). Plaintiff must include those individuals who were allegedly involved in the deprivation of his federal rights as defendant(s) in the caption and in the statement of claim. If Plaintiff 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. Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named. In addition, 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. If Plaintiff does not timely file an amended complaint, judgment shall enter without further notice and this case will be closed.in accordance with this Order. Alternatively, Plaintiff may pursue any valid claims he may have in state court. VI. Section 1915 Privilege The Second Circuit has long-established that “the benefit of § 1915 is a privilege, not a right . . . and that the court's ‘extra measure of authority’ in dealing with § 1915 actions is necessary because frivolous suits unduly burden the courts, sometimes obscuring meritorious claims, occasion significant expenditures of public monies, and are a means by which plaintiffs can use the federal government to harass individual defendants.” Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983) (citations omitted). As in forma pauperis status is not a constitutional right but rather a congressionally created benefit, it can be extended or limited by Congress. Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (citation omitted). Indeed, to help staunch a “flood of nonmeritorious” prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723
(2020) (citing Jones v. Bock, 549 U.S. 199, 203 (2007)). That rule generally prevents a prisoner
9 from bringing suit in forma pauperis—that is, without first paying the filing fee—if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” Id. (quoting 28 U.S.C. § 1915(g)). In determining when a plaintiff should receive a strike for a dismissed case under section 1915(g), the Second Circuit has made clear that district courts should not impose strikes in its dismissal orders. See Barreto v. Cnty. of Suffolk, 455 F. App’x 74, 76 (2d Cir. 2012) (citing
Deleon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004)). Rather, a district court should only consider whether a plaintiff has three strikes if it appears that the plaintiff has run afoul of section 1915(g) and is barred from proceeding in forma pauperis in the instant action. See id. As such, [T]he district court judgments should clearly set forth the reasons for dismissal, including whether the dismissal is because the claim is “frivolous,” “malicious,” or “fails to state a claim,” whether it is because the prisoner has failed to exhaust an available administrative remedy, or for other reasons.
Clarifications of this sort will undoubtedly assist subsequent courts that must determine whether a plaintiff is barred from maintaining an action in forma pauperis by the three strikes rule of Section 1915(g). Deleon, 361 F.3d at 95 (citing Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999)) (purgandum).2 Incarcerated litigants face a greater risk of various harms while in prison, including physical injuries, poor prison conditions, inadequate medical care, and other constitutional deprivations, making their access to relief from the judicial system of the utmost importance. See Rosa v. Doe, No. 21-2628, 2023 WL 8009400 (2d Cir. Nov. 20, 2023) (discussing history and importance of in forma pauperis status). This access, however, when done through in forma
2 See Farmers Property and Casualty Insur. Co. v. Fallon, No. 21-CV-6022 (GRB)(ARL), 2023 WL 4975977, at *3 n.6 (E.D.N.Y. Aug. 3, 2023) (discussing use of “purgandum” to indicate the removal of superfluous marks for the ease of reading).
10 pauperis status, is not unrestricted and the indigent prisoner should be made aware of the limitations. Once a prisoner accrues three dismissals based on either frivolousness, maliciousness, or for failure to state a claim, that prisoner will be prohibited from commencing another action or appeal in forma pauperis unless he is in imminent physical danger—regardless of the meritoriousness of the case. See, e.g., Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir. 2007) (affirming dismissal of prisoner’s in forma pauperis action alleging claims of exposure to
mold and unjust discipline based on the three-strikes rule); Fate v. New York, No. 19-CV-4107 (CS), 2021 WL 1177966, at *7 (S.D.N.Y. Mar. 26, 2021) (dismissing prisoner’s in forma pauperis case alleging campaign of police harassment and retaliation and a physical assault under the three- strikes rule). Indeed, “[r]equiring prisoners to make economic decisions about filing lawsuits does not deny access to the courts; it merely places the indigent prisoner in a position similar to that faced by those whose basic costs of living are not paid by the state.” Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir. 1997) (citation omitted). Here, the Court does not impose any strikes against the Plaintiff but will note, however— for the pro se Plaintiff’s benefit—that the statute under which he is proceeding is a privilege subject to revocation. And the plain language of § 1915(g) suggests that such revocation is compulsory in the face of abuse. See 42 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has [violated the three-strike rule] unless the prisoner is under imminent danger of serious physical injury.”) (emphasis added); see also Lomax, 140 S. Ct. at 1723–24 (“That provision bars further IFP litigation once a prisoner has had at least three prior suits dismissed on specified grounds.”). Accordingly, the Plaintiff proceeding in forma pauperis here is cautioned that the dismissals of his earlier action and the
present complaint as frivolous, malicious, or for failure to state a claim may be considered strikes
11 by a future court and contribute to the determination that he has violated the three-strikes rule of § 1915(g), barring him from commencing further actions or appeals in forma pauperis. CONCLUSION Based on the foregoing, Plaintiff’s application to proceed IFP (DE 2) is granted. However, complaint (DE 1) is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and 1915A(b)(1). Plaintiff is granted leave to file an amended complaint. If Plaintiff chooses to
amend the complaint against a proper defendant in accordance with this Order, he shall do so within thirty (30) days from the date of this Order. Any amended complaint shall be clearly labeled “Amended Complaint” and shall bear the same docket number as this Order, 23-CV- 8106(GRB)(JMW). If Plaintiff does not timely file an amended complaint, judgment shall enter without further notice and this case will be closed. The Clerk of the Court shall also mail a copy of this Order to the pro se Plaintiff at his address of record and note service on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order 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).
SO ORDERED.
/s/ Gary R. Brown _______________________ Gary R. Brown United States District Judge Dated: December 5, 2023 Central Islip, New York