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Daniel Miller, Rohit Gulati, Scott Power, Ramel Williams, and All v. County of Nassau

October 3, 2012

DANIEL MILLER, ROHIT GULATI, SCOTT POWER, RAMEL WILLIAMS, AND ALL CURRENT AND FORMER FEDERAL INMATES CONFINED IN THE NASSAU COUNTY CORRECTIONAL CENTER WHO ARE SIMILARLY SITUATED, PLAINTIFFS,
v.
COUNTY OF NASSAU, MICHAEL J. SPOSATO, SHERIFF OF NASSAU COUNTY, AND CHARLES DUNNE, UNITED STATES MARSHAL, EASTERN DISTRICT OF NEW YORK, DEFENDANTS.



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

ORDER

Incarcerated pro se plaintiff Daniel Miller ("Miller)*fn1, together with fellow inmates Rohit Gulati ("Gulati"), Scott Power ("Power") and Ramel Williams ("Williams") (collectively, "Plaintiffs") filed a Complaint in this Court on August 20, 2012 pursuant to 42 U.S.C. § 1983 ("Section 1983") against the County of Nassau ("Nassau County"), Nassau County Sheriff Michael Sposato ("Sposato"), and Charles Dunne, United States Marshal, Eastern District of New York ("Dunne") (collectively, "Defendants"), accompanied by applications to proceed in forma pauperis for each Plaintiff. The Complaint is styled as a class action, the proposed class being comprised of:

[A]ll inmates confined in the Nassau County Correctional Center, East Meadow, New York, from in or about July 1, 1999 up until the date of the filing of this complaint who are: federal pretrial detainees, holdover federal prisoners awaiting sentencing, holdover federally sentenced prisoners awaiting designation by the Bureau of Prisons, of federal parole probation or supervised release violators awaiting final disposition. (Compl. at 1.) In addition, Plaintiffs filed an Order to Show Cause seeking a temporary restraining order and a preliminary injunction:

1. enjoining, prohibiting and restraining the enforcement of the contract entered into and between the County of Nassau and the U.S. Marshals Service to house federal prisoners in the Nassau County Correctional Center in East Meadow, New York while this action remains pending;

2. enjoining the U.S. Marshals Service to move all federal prisoners from the Nassau County Correctional Facility to either MDC or Queens during the pendency of this action;

3. certifying this action as a Class Action, and appointing counsel to represent the interests of the class; and

4. for such other and further relief as the Court may deem just and proper.

(See Order to Show Cause, filed August 20, 2012.)

Because Miller has had "three strikes" pursuant to 28 U.S.C. § 1915(g), and has not alleged that he is "under imminent danger of serious physical injury," his application to proceed in forma pauperis is denied. Miller is directed to pay his pro rata share of the $350.00 filing fee within fourteen (14) days of the date of this Order, and a failure to do so will lead to the dismissal of his claims without further notice and judgment shall enter. Miller is advised that his payment of the filing fee does not exempt him from the requirements of 28 U.S.C. § 1915A and the Court is required to dismiss a complaint if the action is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i-iii); 28 U.S.C. § 1915A(a) & (b).

In addition, because Plaintiffs are proceeding pro se they cannot represent anyone other than themselves. See, e.g., Moore v. T-Mobile USA, No. 10-CV-0527, 2011 WL 609818, *6 (E.D.N.Y. Feb. 15, 2011) ("[Plaintiff] cannot convert this action to a class action because he is proceeding pro se, and a pro se litigant cannot represent anyone other than himself or herself." (citing Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990))). Accordingly, the request for class certification is denied.

The applications to proceed in forma pauperis filed by Gulati, Power and William are granted; but, for the reasons that follow their claims are sua sponte dismissed, in part, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Leave to file an Amended Complaint is accordance with this Order is granted.

Finally, the requests for a temporary restraining order and/or a preliminary injunction are denied.

DISCUSSION

I. The Complaint

The thirty (30) page handwritten Complaint, brought pursuant to 42 U.S.C. § 1983 ("Section 1983) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), seeks to challenge a contract originally entered in 1999 and "repeatedly renewed" between the County of Nassau and the United States Marshal Service to "house federal prisoners at the Nassau County Correctional Center." (Compl. at 7.) Each of the Plaintiffs claims to be a federal prisoner or federal pre-trial detainee who is being housed at the Nassau County Correctional Center. The gravamen of the Complaint is that the conditions at the Nassau County Correctional Center are deplorable and, therefore, the "contract entered into by and between the County of Nassau and the United States Marshals Service [is] illegal and unenforceable and violative of the civil rights of federal prisoners, nunc pro tunc to July 1999."

Plaintiffs also complain generally about the conditions at the Nassau County Correctional Center. More specifically, Plaintiffs allege, inter alia, that: (1) the cleaning supplies provided to inmates at the jail are insufficient; (2) there are roaches and rodents and no schedule for "pest control"; (3) inadequate personal hygiene supplies are provided to inmates; (4) access to the law library is not sufficient and the materials available in the library are inadequate; (5) commissary funds are misappropriated and the food sold at the commissary is unhealthy and high in fat, sugar and calories; (6) preferential treatment is given to inmates who are Catholic, Jewish, Protestant or Muslim but other religions such as "Rastafarianism, Santeria [sic] and Native Americans" are not recognized and that the only religious meals provided are for those inmates who follow a Kosher diet; (7) food portions are small and there is no dietician or nutritionist on staff; (8) the medical staff allows correctional staff access to confidential medical files and often discuss inmates' medical issues in violation of HIPPA and other Federal and State confidentiality laws; (9) medications are denied to inmates, such as psychoactive medications, and are limited to only those available as generic or a formulary equivalent to a name brand drug, and (10) jail staff members often use "falsified disciplinary actions and arbitrary lock-ins as a form of abuse." (Compl. ¶¶ 9-69.)

Further, Plaintiffs allege that, in 1998, an inmate named "Nicholas Pizzutto was murdered by officers of the facility." (Compl. at 5.) Plaintiffs describe that the death of Pizzutto prompted an investigation that was well-documented in the media and, as a result, a consent decree was entered between Nassau County and the U.S. Justice Department under which the conditions were to be rectified. Notwithstanding the consent decree, Plaintiffs claim that "inmates are subjected to daily verbal and often physical assaults by staff members." (Compl. at 19.) There are no additional facts alleged to support this assertion. (Id.)

Plaintiffs seek a preliminary and permanent injunction: (1) requiring Dunne to move each named Plaintiff to the Metropolitan Detention Center ("MDC") in Brooklyn and to move all incarcerated class members to either MDC or Queens; (2) enjoining enforcement of the contract between Nassau County and the U.S. Marshal Service; (3) requiring Nassau County to refund any and all sums received from the United States for the housing of Federal inmates retroactively from July 1999 to the date of the filing of this Complaint; and (4) requiring such sums to be placed into a special fund to be administered by the U.S. Probation Department, Eastern District New York, and allocated to be used for the sole purpose of providing newly released federal prisoners with assistance with respect to housing, education, job training, child care, small business grants, etc. (Compl. at 26.) Plaintiffs also seek an unspecified sum for punitive, compensatory, exemplary, and nominal damages. (Compl. at 27-28.)

II. In Forma Pauperis Applications

The Court has reviewed the applications to proceed in forma pauperis of Gulati, Power and Williams and finds that their financial status qualifies them to commence this action without prepayment of the Court's filing fees. Accordingly, the applications by Gulati, Power and Williams to proceed in forma pauperis are granted.

Miller, however, has had "three strikes" and is thus barred from filing this action in forma pauperis. 28 U.S.C. ยง 1915(g) bars prisoners from proceeding in forma pauperis after three or more previous claims have been dismissed as frivolous, malicious or for failure to state a claim upon which relief may be ...


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