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Grice v. Nassau County Correctional Center

United States District Court, E.D. New York

August 2, 2017

ANTHONY GRICE, Plaintiff,
v.
NASSAU COUNTY CORRECTIONAL CENTER and OFFICER SPERLING, Defendants. ANTHONY GRICE, Plaintiff,
v.
OFFICER SPERLING, NASSAU COUNTY SHERIFF'S DEPARTMENT, COUNTY OF NASSAU, and MICHEAL [SIC SPOSATO, Defendants.

          For Plaintiff: Anthony Grice, pro se [1] Downstate Correctional Facility

          For Defendants: Officer Sperling Liora M. Ben-Sorek, Esq. Nassau County Attorney's Office

          Nassau County Sheriff's Department, County of Nassau, and Michael J. Sposato No appearances.

          MEMORANDUM & ORDER

          Joanna Seybert, U.S.D.J.

         On January 23, 2017, incarcerated pro se plaintiff Anthony Grice (“Plaintiff”) filed a Complaint in this Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the Nassau County Correctional Center (“the Jail”) and Officer Sperling (together, “Defendants”), alleging, inter alia, that he was assaulted on January 4, 2017 while incarcerated at the Jail. (See the “First Complaint”, Grice v. Nassau Cty. Corr. Ctr., No. 17-CV-0476.) By Memorandum and Order dated February 6, 2017, the Court granted Plaintiff's application to proceed in forma pauperis, dismissed Plaintiff's claims as against the Jail, and ordered service of the summons and complaint upon Officer Sperling. (See Mem. & Order, Docket Entry 6.) On March 29, 2017, Officer Sperling filed an Answer to the Complaint, (Ans., Docket Entry 10) and, on March 30, 2017, Magistrate Judge Arlene R. Lindsay entered a discovery scheduling order (Scheduling Order, Docket Entry 11). However, the Scheduling Order that was mailed to Plaintiff was returned and marked “Return to Sender”, “Unable to Forward”, and “Unclaimed.” (See Docket Entry 15.)

         On February 23, 2017, Plaintiff filed another Complaint against Officer Sperling and has included as additional Defendants: (1) the Nassau County Sheriff's Department (the “Sheriff's Department”); (2) the County of Nassau (“Nassau County”); and (3) Michael J. Sposato (“Sheriff Sposato”) (“the Second Complaint”). The Second Complaint (assigned Docket Number 17-CV-1232) seeks to challenge the same January 4, 2017 incident described in the First Complaint.

         Upon review of the declaration in support of the application to proceed in forma pauperis filed together with the Second Complaint, the Court finds that Plaintiff is qualified to commence this action without prepayment of the filing fee. See 28 U.S.C. §§ 1914(a); 1915(a)(1). Therefore, Plaintiff's request to proceed in forma pauperis is GRANTED. However, for the reasons that follow, Plaintiff's claims against the Sheriff's Department are DISMISSED WITH PREJUDICE and against Nassau County and Sheriff Sposato are DISMISSED WITHOUT PREJUDICE. Because the remaining claims against Officer Sperling in the Second Complaint are repetitive of the claims alleged in the First Complaint and are against the same Defendant, the Court consolidates them under the first-filed Complaint, 17-CV-0476, and DIRECTS that the case assigned docket number 17-CV-1232 be CLOSED. All future filings shall be made only under docket number 17-CV-0476. Accordingly, the Court ORDERS service of the Summons and Second Complaint upon Officer Sperling by the United States Marshal Service (“USMS”).

         THE SECOND COMPLAINT[2]

         Plaintiff's Second Complaint is submitted on the Court's Section 1983 Complaint and is brief. The Statement of Claim is a single sentence:

January 4, 2017 I was leaving medical when a known gang member enter an argument and fight with me, upon a tussel insued I was grabbed by Officer Sperling by my shirt and neck and thrown to the floor with my head hitting the wall and busting open leaving a 3 inch gash needing 8 staples to close.

(Compl. ¶ IV.) Plaintiff alleges: “My head, neck, back, and shoulder in which required 8 staples to close the wound I have headaches and my neck, back, and shoulder are in constant pain.” (Compl. ¶ IV.A.) For relief, Plaintiff seeks “monetary, procedure changes, repremand, therapy and medical treatment.” (Compl. ¶ V.)

         DISCUSSION

         I. In Forma Pauperis Application

         Upon review of Plaintiff's declarations in support of his application to proceed in forma pauperis, the Court finds that Plaintiff is qualified to commence this action without prepayment of the filing fees. See 28 U.S.C. ยง 1915(a)(1). ...


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