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Darwing Nunez v. Michael J. Sposato

August 17, 2012

DARWING NUNEZ, PLAINTIFF,
v.
MICHAEL J. SPOSATO, SHERIFF, JOHN DOE, WARDEN OF THE NASSAU COUNTY CORR. CENTER, DEFENDANTS.



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

ORDER

On August 6, 2012, incarcerated pro se plaintiff Darwing Nunez ("Plaintiff") filed a Complaint in this Court pursuant to 42 U.S.C. § 1983 against the defendants, Sheriff Michael Sposato and the "John Doe" Warden of the Nassau County Correctional Center (together, the "Defendants") accompanied by an application to proceed in forma pauperis.

Upon review of Plaintiff's declaration in support of the application, the Court finds that Plaintiff's financial status qualifies him to file this action without prepayment of the filing fee. Accordingly, the application to proceed in forma pauperis is granted. However, for the reasons that follow, the Complaint is sua sponte dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

BACKGROUND

Plaintiff's brief handwritten Complaint submitted on the Court's civil rights complaint form alleges a single paragraph:

On July 24, 2012 while exiting the second floor shower I slipped and fell on to the stailess [sic] steel shower doors, bursting open the bottom portion of my ear lobe (on rights side ear). E2-D44 Housing Officer was notified of whom wrote a report and thereinafter sent me to medical for treatment.

Medical gave me six (6) stitches. Also my neck & back have been injured. A follow up medical sick call request has been written and filed. Note: there is/was no wet floor sign's [sic] ever posted. (Compl. at ¶ IV). As a result of the fall, Plaintiff claims to now suffer "severe pain and nothing for pain has been given to me." (Compl. at ¶ IV. A.). Accordingly, Plaintiff seeks to recover three and a half ($3.5) million dollars in compensatory damages as well as three and a half million dollars ($3.5 million) in punitive damages, for a total award of seven million dollars ($7,000,000). (Compl. at ¶ V).

DISCUSSION I. In Forma Pauperis Application Upon review of Plaintiff's declaration in support of his application to proceed in forma pauperis, the Court determines 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 28 U.S.C. § 1915 Section 1915 of Title 28 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); 1915A(b). The Court is required to dismiss the action as soon as it makes such a determination. See Id.

Courts are obliged to construe the pleadings of a pro se plaintiff liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). 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) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949--50, 173 L. Ed. 2d 868 (2009). However, 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, 570 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (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, 129 S. Ct. at 1949 (citations omitted). 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.'" Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1955).

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. ยง 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. Cnty. of Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)). Section 1983 does not create a substantive right; rather, to ...


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