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Malquisua Mendez v. Michael Sposato

March 15, 2011

MALQUISUA MENDEZ, PLAINTIFF,
v.
MICHAEL SPOSATO, ACTING SHERIFF OF NASSAU COUNTY, C/O KENNY SHIELD #2468, C/O HOOD SHIELD #897, COUNTY COURT DETENTION AND TRANSPORTATION OF NASSAU COUNTY CORRECTIONAL CENTER OF EAST MEADOW, DEFENDANTS.



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

ORDER

On November 8, 2010, incarcerated pro se plaintiff Malquisua Mendez ("Plaintiff") filed a Complaint in this Court against Michael Sposato, the Acting Sheriff of Nassau County, Nassau County Corrections Officers Kenny #2468 and Hood #897 and the "County Court Detention and Transportation of Nassau County Correctional Center" pursuant to 42 U.S.C. § 1983, accompanied by an application to proceed in forma pauperis. Plaintiff's request for permission to proceed in forma pauperis is GRANTED, and for the following reasons the Complaint is sua sponte DISMISSED WITH PREJUDICE as against the County Court Detention and Transportation of Nassau County Correctional Center and DISMISSED WITHOUT PREJUDICE as against Nassau County and Sheriff Sposato. The Complaint shall proceed against Officers Hood and Kenny in so far as they are sued in their individual capacities and the United States Marshal for the Eastern District of New York is directed to serve the Complaint on these defendants.

BACKGROUND

Plaintiff's sparse handwritten Complaint alleges that, on June 8, 2010 at approximately 9:50 a.m., Plaintiff was in the "County Court detention", when he was hit in his left eye by another inmate, Olban Gonzales #10004996 ("Gonzales"). (Compl. at ¶ IV.) According to the Complaint, the Plaintiff and Gonzales had previously had a physical altercation and, as a result, he and Gonzales were to be kept separate from each other. Plaintiff alleges that he told Defendant Hood to keep Plaintiff and Gonzales apart and advised that they had been separated since the fight on March 17, 2010. (Compl. at ¶ IV and attachments thereto.) Plaintiff claims that Defendant Hood responded "[d]on't worry you be ok" and refused to grant Plaintiff's request. (Compl. at ¶ IV.) As a result, Plaintiff was placed in the same cell with Gonzales by Defendants Hood and Kenny at the County Court where Plaintiff claims he was struck by Gonzales in the left eye. (Compl. at ¶ IV.)

Plaintiff was taken to Nassau University Medical Center on June 8, 2010 where he was examined and determined not to have suffered a fracture. (Compl. at ¶ II and attachments annexed thereto.) On June 10, 2010, Plaintiff was taken to the Department of Ophthalmology at the Nassau University Medical Center where he was again examined and found to have suffered a trauma to his left eye that "should resolve on its own." (Compl. at ¶ II and attachments annexed thereto.) Plaintiff alleges that he "lost 50% of vision" and he "cannot see very well." (Compl. at ¶ IV.) As a result, Plaintiff seeks to recover $5 million in unspecified damages from the Defendants. (Compl. at ¶ V.)

DISCUSSION I. In Forma Pauperis Application

Having reviewed Plaintiff's declaration in support of his application to proceed in forma pauperis, the Court finds that he is qualified to commence this action without prepayment of the filing fee. See 28 U.S.C. § 1915 (a)(1). Accordingly, Plaintiff's request for permission to proceed in forma pauperis is GRANTED.

II. Application of the Prison Litigation Reform Act The 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). 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 rasing 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 state 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., 167 F.3d 125, 127 (2d Cir. 1999).

III. Section 1983

Section 1983 provides that:

[e]very person who, under color of any statute, ordinance, regulation, customs, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United State . . . 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. 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 who was 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, 693 F. Supp. 2d 217, 223 (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). Here, affording Plaintiff's Complaint a liberal construction, it appears that Plaintiff seeks to assert an Eighth Amendment deliberate indifference claim against the Defendants.

A. Claim Against Sheriff Michael Sposato Although difficult to discern, it appears that Plaintiff's claim against Defendant Sposato arises solely from his supervisory position. Indeed, the Complaint is wholly devoid of any allegations of any conduct attributable to Defendant Sposato. A plaintiff asserting a Section 1983 claim against a supervisory official in his individual capacity must sufficiently plead that the supervisor was personally involved in the constitutional deprivation. Rivera v. Fischer, 655 F. Supp. 2d 235, 237 (W.D.N.Y. 2009); see also Warren v. Goord, 476 F. Supp. 2d 407, 413 (S.D.N.Y 2007), aff'd., 368 Fed. Appx. 161 (2d Cir. 2010) ("It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under ยง 1983.'") (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. ...


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