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Alex Merchant v. Nassau County

July 20, 2011

ALEX MERCHANT, PLAINTIFF,
v.
NASSAU COUNTY, NASSAU COUNTY CORRECTIONS CENTER-NCCC, SHERIFF MICHAEL SPOSATO, COUNTY ATTORNEY/NASSAU COUNTY, DEFENDANTS.



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

ORDER

On June 29, 2011, incarcerated pro se plaintiff Alex Merchant ("Plaintiff") filed a Complaint in this Court pursuant to 42 U.S.C. § 1983 against Nassau County, Nassau County Corrections Center ("NCCC"), Sheriff Michael Sposato, and the County Attorney for Nassau County (collectively, "Defendants"). Accompanying the Complaint is an application to proceed in forma pauperis. Plaintiff's request for permission to proceed in forma pauperis is GRANTED, but, for the reasons that follow, the Complaint is sua suponte dismissed. Plaintiff is granted thirty (30) days to file an Amended Complaint as set forth below.

BACKGROUND

According to the brief, handwritten Complaint submitted on the Court's civil rights complaint form, Plaintiff was placed on the "adolescent tier" upon arriving at the Nassau County Correctional Center. Plaintiff alleges that he is 19 years old, and, as such, he belonged on the adult tier. (Compl. at ¶ IV). Plaintiff claims that he told "the COs" that he was 19, but "they just laughed" at Plaintiff. (Id.). Eleven days later, while still on the adolescent tier, Plaintiff describes that he was "jumped" by other inmates and then "[m]ased" by unidentified corrections officers. (Id.). As a result of the alleged assault, Plaintiff claims to have suffered injuries to his shoulder and back. (Id.). Plaintiff alleges that he was then moved to an "adolescent lock-in tier" notwithstanding Plaintiff's request to be moved to an adult tier. (Id.). Plaintiff then submitted a grievance that resulted in his being moved to an adult tier. (Id.). Plaintiff claims that despite putting in "sick calls" he has received no medical treatment for his injuries. (Compl. at ¶ IV.A.). Plaintiff claims that his shoulder is "out of place" and his back is having "a lot of problems." (Id.).

As a result of the foregoing, Plaintiff seeks unspecified "money compensation" for his claimed injuries and for "them putting me on a [sic] adolescents tier." (Compl. at ¶ V).

DISCUSSION I. In Forma Pauperis

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 fees. 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); 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 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, 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. 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, No. 07-CV-2138 (RRM)(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).

A municipal body, such as a county, may not be held liable under Section 1983 for the unconstitutional acts of its employees absent an allegation that such acts are attributable to a municipal custom, policy or practice. See Monell v. New York City Dep. of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978); see also Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008) (Section 1983 requires a plaintiff suing a municipality to show "an injury to a constitutionally protected right . . . that . . . was caused by a policy or custom of the municipality or by a municipal official 'responsible for establishing final policy.'").

In addition, in order to state a claim for relief under Section 1983 against an individual defendant, a plaintiff must allege the personal involvement of the defendant in the alleged constitutional deprivation. Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010). The Supreme Court held in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009) that "[b]ecause vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. Thus, 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). A complaint based upon a violation under Section 1983 that does not ...


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