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Damien T. Burton v. Nassau County Sheriff Dept.

May 1, 2013

DAMIEN T. BURTON, PLAINTIFF,
v.
NASSAU COUNTY SHERIFF DEPT., MICHAEL SPOSATO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF NASSAU COUNTY, DEFENDANTS.



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

MEMORANDUM & ORDER

Before the Court is the Complaint of incarcerated pro se plaintiff Damien T. Burton ("Plaintiff") against the Nassau County Sheriff's Department and Nassau County Sheriff Michael Sposato ("Sposato") (together, "Defendants") filed pursuant to 42 U.S.C. § 1983, 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 pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii); 1915A(b) and with leave to file an Amended Complaint.

BACKGROUND

Plaintiff's brief, handwritten Complaint submitted on the Court's Section 1983 complaint form alleges the following in its entirety:*fn1

In May 2012 I was bit by a spider for which I took medication for eventually the medication caused chest pains and light dizziness which I complained. I was given nothing for that Alment. In June 2012 I grieved about mouse droppings inside my cereal. In Aug 2012 I grieved about not eating and medication the officers assigned to E1B refused to feed us lunch and didn't open the entire top teir because there was a complaint about the crab salad smelling bad so the inmates at the bottom teir refused to eat and never let the other 26 inmates out on the top to make a choice to eat or not nor did the officers compensate with another meal sandwiches Etc. A denial to eat is at the discretion of the inmate if he refuses not of the officers. Also Roaches inside the food cart this has been the norm for 10 months April 28, 2012, Feb 20, 2012.

Compl. at ¶ IV. Plaintiff also alleges that he "recieved medication for the spider bite. I also receive [sic] aspirin now to thin my blood to lower my chances of a heart attack due to the medication I recieved [sic] from the jail." Compl. at ¶ IV.A. For relief, Plaintiff seeks, inter alia, unspecified monetary damages as well as "someone from the United States District Court EDNY to come see me regarding these problems here are Nassau County Jail." 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, 556 U.S at 678, 129 S. Ct. at 1949 (citations ...


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