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Jonathan J. Cavalea v. Dr. Jane

February 28, 2011

JONATHAN J. CAVALEA, PLAINTIFF,
v.
DR. JANE, NURSE SOSA, WARDEN OF SUFFOLK COUNTY JAIL, SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, SUFFOLK COUNTY SHERIFF'S OFFICE, NEW YORK STATE, SUFFOLK COUNTY CLERK, SUFFOLK COUNTY, DEFENDANTS.



The opinion of the court was delivered by: SEYBERT,District Judge

MEMORANDUM AND ORDER

Presently pending before the Court is the Complaint of incarcerated pro se plaintiff Jonathan J. Cavalea ("Plaintiff") filed pursuant to 42 U.S.C. § 1983 ("Section 1983") together with an application to proceed in forma pauperis. For the reasons that follow, the application to proceed in forma pauperis is granted and the Complaint is dismissed with prejudice as against New York State, Suffolk County Department of Health Services and Suffolk County Sheriff's Office and dismissed without prejudice and with leave to replead as against Dr. Jane, Nurse Sosa, Warden of Suffolk County Jail, Suffolk County Clerk, and Suffolk County.

BACKGROUND

Plaintiff's Complaint alleges that he "has been denied the 'proper and needed medical care' on-going treatment for the claimant disease, (RSD) 'Reflex-Sympathetic-Dystrophy' 'Syndrome.'" (Compl. at ¶ IV). Plaintiff states that he has not been given the proper medications to treat his disease and that he "was denied 'the removal of claimants [sic] hardware,' in the claimants [sic] left femor [sic] by, 'The Correctional Facility Contracted Orthopedic.'" Id. Moreover, Plaintiff claims that he was "refused 'ROR Release' for claimants [sic] disease specialist surgeon in New York City . . . to repair claimants [sic] (RSD) pain and removal of the shifted rod in claimants [sic] left femor [sic]." Id. Plaintiff states he has awared [sic] the Facility, 'Suffolk County Medical Staff' about the unbearable pain in claimants [sic], 'left knee and hip flexor' which has a metal rod embeded [sic] in the claimants left femur, which has shifted from when the claimant fell on July 1st 2010, at 6:25 pm, which has caused the metal rod to create unbearable pain in the hip flexor. (Compl. at ¶ IV.A). Plaintiff also claims he had his "walking cane taking [sic]" and as a result Plaintiff's "knee caved inward, on July 1st, 2010, which caused claimant to fall." Id. Lastly, Plaintiff claims that "a growing 'cyst' has formed on affected limb." Id.

Plaintiff seeks relief in the form of "immediate 'ROR' release from facility, to obtain proper medical care." (Compl. at ¶ V). Plaintiff also seeks to recover damages with interest for his alleged pain and suffering.*fn1 Lastly, Plaintiff seeks "'40 day's good time' to be returned from: 'Suffolk County Correctional Facility, . . . '" Id.

DISCUSSION I. In Forma Pauperis Application

Upon review of Plaintiff's declaration in support of his application to proceed in forma pauperis, the Court finds that Plaintiff's financial status qualifies him to commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff's request to proceed in forma pauperis is GRANTED.

II. Application of the Prison Litigation Reform Act The 1996 Prison Litigation Reform Act, codified at 28 U.S.C. § 1915, requires a district court 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); 28 U.S.C. § 1915A (a) & (b); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court is required to dismiss the action as soon as it makes such a determination. 28 U.S.C. § 1915A(a).

It is axiomatic that pro se complaints are held to less stringent standards than pleadings drafted by attorneys and the Court is required to read the Plaintiff's pro se Complaint liberally and interpret it raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d. Cir. 2004) ("[W]hen the plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations."). Moreover, at this stage of the proceeding, the Court assumes the truth of the allegations in the Complaint. See Hughes, 449 U.S. at 10; Koppel v. 4987 Corp., 167F.3d 125, 127 (2d Cir. 1999).

A. Section 1983

Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983 (2000). To state a claim under Section 1983, a plaintiff must "allege that (1) the challenged conduct was attributable at least in part to a person acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Rae v. County of Suffolk, No. 07-CV-2138 (RMM) (ARL), 2010 WL 768720, at *4 (E.D.N.Y. Mar. 5, 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). Section 1983 does not create a substantive right; rather, to recover, a plaintiff must establish the deprivation of a separate, federal right. See Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).

In addition, in order to state a claim for relief under Section 1983, the plaintiff must allege the personal involvement of a defendant in the purported constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). "Personal involvement" may be established by evidence of direct participation by a supervisor in the challenged conduct, or by evidence of a supervisory official's "(1) failure to take corrective action after learning of a subordinate's unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates." Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003). A complaint based upon a violation under Section 1983 that does not allege the personal involvement of a defendant fails as a matter of law. See Johnson v. Barney, 360 Fed. Appx. 199, 2010 WL 93110, at *1 (2d Cir. Jan. 12, 2010).

Here, Plaintiff fails to allege personal involvement by Dr. Jane, Nurse Sosa, the Warden of Suffolk County Jail, the Suffolk County Sheriff's Office, and the Suffolk County Clerk. In addition, Plaintiff fails to allege facts from which the Court could liberally construe a plausible Section 1983 claim. Accordingly, the Complaint is dismissed without prejudice as against Dr. Jane, Nurse Sosa, the Warden of Suffolk County Jail, and the Suffolk County Clerk and Plaintiff is given leave to amend his Complaint. However, for the reasons that follow, the Complaint is dismissed with prejudice as against the Suffolk County Department of Health Services, the Suffolk County Sheriff's Office and the State of New York.

B. Claims Against Suffolk County Department of Health Services and the Suffolk County Sheriff's Office "[U]nder New York law, departments that are merelyadministrative arms of a municipality do not have a legal identity separate and apart from the municipality and therefore, cannot sue or be sued." See Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (dismissing claim against Lynbrook Police Department); see also Carthew v. County of Suffolk, 709 F. Supp. 2d 188, 195 (E.D.N.Y. 2010) (holding that the Suffolk County police department is an administrative arm of the County and, thus, lacks the capacity to be sued); Barreto v. Suffolk County, No. 10-CV-0028, 2010 WL 301949, at * 2 ...


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