Dorlette v. Quiros et al

Filing 92

ORDER: Defendant's MOTION for Summary Judgment (Doc. No. 68 ) is hereby GRANTED in part. It is so ordered. Signed by Judge Alvin W. Thompson on 9/26/2012. (Sykes, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

FAROULH DORLETTE,
Plaintiff,
v.
ANGEL QUIROS, et al.,
Defendants.

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Case No. 3:10cv615(AWT)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Doc. #68]
In this civil rights action, the plaintiff, Faroulh
Dorlette, asserts Eighth Amendment claims for use of excessive
force, denial of proper medical care and harassment/retaliation
against defendants Angel Quiros, Michael Lajoie, Stephen Faucher,
David Butkiewicus, Paul Germond, William Brunette, Alejandro
Correa, Jeffrey Duclos, Sean Guimond, Todd Reale, Shannon
Lawrence, Dominic Gionfriddo, Richard Zina, Scott Prouty, Jason
Cahill, Alcides Santiago and Kathy Weiner.1
filed a motion for summary judgment.

The defendants have

For the reasons that

follow, the defendants’ motion is being granted in part.
I.

Legal Standard
In a motion for summary judgment, the burden is on the

moving party to establish that there are no genuine issues of

1

The court notes that the plaintiff also alleges that his
right to due process under the Fourteenth Amendment was violated.
This contention is not addressed in the Initial Review Order or
the motion for summary judgment.
.

material fact and that it is entitled to judgment as a matter of
law.

See Rule 56(a), Fed. R. Civ. P.; Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986).

The moving party may satisfy

this burden “by showing–that is pointing out to the district
court–that there is an absence of evidence to support the
nonmoving party’s case.”

PepsiCo, Inc. v. Coca-Cola Co., 315

F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation
marks and citations omitted).

Once the moving party meets this

burden, the nonmoving party must “set forth specific facts
showing that there is a genuine issue for trial,” Anderson, 477
U.S. at 255, and present such evidence as would allow a jury to
find in his favor in order to defeat the motion for summary
judgment.

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.

2000).
When reviewing the record, the court resolves all
ambiguities and draws all permissible factual inferences in favor
of the party against whom summary judgment is sought.

Patterson

v. County of Oneida, NY, 375 F.3d 206, 218 (2d Cir. 2004).

If

there is any evidence in the record on a material issue from
which a reasonable inference could be drawn in favor of the
nonmoving party, summary judgment is inappropriate.

Security

Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d
77, 83 (2d Cir. 2004).

However, “‘[t]he mere of existence of a

scintilla of evidence in support of the [plaintiff’s] position

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will be insufficient; there must be evidence on which the jury
could reasonably find for the [plaintiff].’”

Dawson v. County of

Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting Anderson,
477 U.S. at 252)).
Facts2

II.

On October 23, 2009, the plaintiff was confined at Northern
Correctional Institution, a level five maximum security facility.
The plaintiff was classified as a Security Risk Group Safety
Threat Member.

At approximately 8:35 a.m., the plaintiff was

returning to his housing unit after his recreation period.
Defendants Brunetti and Correa were among the officers
supervising the inmates.
The other inmates in the group all headed toward the dayroom
door.

An altercation ensued between the plaintiff and defendants

Correa and Brunetti.
altercation.

The parties dispute who instigated the

Many correctional officers responded.

A chemical

agent was used during the effort to bring the plaintiff to the
ground and restrain him.

The plaintiff was escorted to the

2

The facts are taken from the Local Rule 56(a) Statements
filed by the parties. Six of the affidavits submitted by the
defendants and relied upon in their Local Rule 56(a) Statement,
however, are incomplete. On November 1, 2011, the court granted
the plaintiff’s motion to strike the affidavits of Todd Reale,
Sean Guimond, Jason Cahill, Kathleen Weiner, Stephen Faucher and
Jeffrey Duclos, and afforded the defendants until November 21,
2011, to file complete affidavits. See Doc. #76. The defendants
did not meet this deadline. Accordingly, the court does not
consider these six affidavits.
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showers and then to the medical unit for assessment.

The

plaintiff suffered an abrasion to his scalp and a contusion on
his lip, which were treated in the medical unit.

The plaintiff

disputes that these were his only injuries.
After his removal from the medical unit, the plaintiff was
placed in in-cell restraints, consisting of handcuffs, shackles
and a tether chain.

The restraints were inspected by defendants

Germond and Lawrence.

The plaintiff disputes their findings of

ample spacing between the restraints and his body.
The plaintiff remained on administrative detention, on incell restraint status, pending an investigation for an alleged
assault on staff.

Department of Correction records indicate that

the plaintiff’s restraints were checked every fifteen minutes.
The checks are performed by both custodial and medical staff.
least twice per day, medical staff examine the restraints to

At

ensure the skin is intact and not cut or scratched by the
restraints.

In addition, skin color is checked to ensure that

circulation is not affected by restraints that are too tight.
The plaintiff disputes the number and adequacy of these checks.
The following day, defendant Germond reviewed the
plaintiff’s status by checking the restraints and speaking to
staff.

Staff reported that the plaintiff continued to be

disruptive.

Defendant Germond concluded that the plaintiff

continued to pose a threat to institutional safety and security

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and a risk of interference with facility operations.

Defendant

Germond told the plaintiff that he would remain on in-cell
restraint status as a result of his disruptive behavior.
On October 25, 2009, defendant Germond again reviewed the
plaintiff’s status.

Staff reported, and defendant Germond

observed, that the plaintiff continued to be disruptive.
plaintiff denies this.

The

Defendant Germond informed the plaintiff

that in-cell restraint status would be continued again.
The plaintiff was removed from in-cell restraint status on
October 26, 2009, after reaching the 72-hour limit for this form
of restraint.

At that time, the plaintiff was compliant and did

not pose a risk to the safety of staff or facility operations.
The plaintiff received a disciplinary report for assault.
He was found guilty following a hearing.

The plaintiff states

that he cannot recall attending the hearing.

The plaintiff also

was convicted following a criminal trial on a charge of
assaulting defendants Brunetti and Correa.

He was sentenced to a

consecutive sentence of ten years, followed by ten years of
special parole.
Defendant Zina issued the plaintiff a disciplinary report
for threats based on his conduct while on in-cell restraint
status.

Although the plaintiff denies making any threats, he was

found guilty of the charge following a hearing.
On December 10, 2009, defendant Santiago searched the

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plaintiff’s cell.

Cell searches are routinely performed to

maintain institutional safety and security by locating
contraband.

Correctional staff search each and every part of the

cell and every item in the cell.

Several items of contraband

were found in the plaintiff’s cell, including a radio that had
been altered, a second radio that belonged to another inmate,
clothes lines, books, torn magazines and cleaning solution.

In

addition, there were numerous papers attached to the light
fixtures and walls in violation of prison rules.

The plaintiff

was issued a disciplinary report for possession of contraband.
The charge was dismissed after the plaintiff’s cellmate took
responsibility for all of the items.
III.

Discussion
In this action, the plaintiff claims that the defendants (1)

used excessive force against him; (2) denied him necessary
medical care; (3) subjected him to unconstitutional conditions of
confinement for three days by restraining him in a filthy cell;
(4) failed to afford him due process before placing him on
restraint status; and (5) retaliated against him through verbal
harassment, unnecessary cell searches, theft and issuance of
false disciplinary reports.

He also includes claims for

supervisory liability and conspiracy.

In the Initial Review

Order, filed May 10, 2010, the court dismissed the conspiracy
claims.

See Doc. #4.

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The defendants move for summary judgment on the following
grounds: (1) all claims for damages against the defendants in
their official capacities are barred by the Eleventh Amendment;
(2) the defendants are protected by qualified immunity; (3) the
plaintiff fails to demonstrate the personal involvement of
defendants Lajoie, Quiros and Weiner; (4) the defendants did not
use excessive force; and (5) the plaintiff fails to state a claim
for retaliation or harassment.

The court considers each argument

below.
A.

Eleventh Amendment Immunity

The defendants first argue that any claims against them in
their official capacities are barred by the Eleventh Amendment.
In response, the plaintiff states that he has not named any
defendant in his or her official capacity.
The complaint caption clearly states that all defendants are
named in their individual capacities only.

See Doc. #1 at 1.

Accordingly, the defendants’ motion for summary judgment on this
ground is denied as moot.
B.

Personal Involvement

The defendants argue that the plaintiff fails to establish
the personal involvement of defendants Lajoie, Quiros and Weiner
in the incidents underlying this case.
1.

Michael Lajoie and Angel Quiros

Because the doctrine of respondeat superior is inapplicable

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in section 1983 cases, see Blyden v. Mancusi, 186 F.3d 252, 264
(2d Cir. 1999), supervisors are not automatically liable under
section 1983 when their subordinates commit a constitutional
tort.

For many years it was well settled in this circuit that

there were five ways to demonstrate the personal involvement of a
supervisory defendant: "(1) the defendant directly participated
in the alleged constitutional violation, (2) the defendant, after
being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or
custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of inmates by failing to
act on information indicating that unconstitutional acts were
occurring."

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)

(quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
In addition, the plaintiff must demonstrate an affirmative causal
link between the supervisory official’s failure to act and his
injury.

See Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court
rejected the argument that “a supervisor’s mere knowledge of his
subordinate’s discriminatory purpose amounts to the supervisor’s
violating the Constitution,” concluding that “each Government

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official, his or her title notwithstanding, is only liable for
his or her own misconduct.”

Id. at 677.

Since Iqbal, some

districts courts in this circuit have concluded that not all five
of Colon’s categories of conduct that may give rise to
supervisory liability remain viable.

See e.g., Bellamy v. Mount

Vernon Hospital, No. 07 Civ. 1801(SAS), 2009 WL 1835939 at *6
(S.D.N.Y. June 26, 2009) (“The Supreme Court’s decision in Iqbal
v. Ashcroft abrogates several of the categories of supervisory
liability enumerated in Colon v. Coughlin.

Iqbal’s active

conduct standard only imposes liability on a supervisor through
section 1983 if that supervisor actively had a hand in the
alleged constitutional violation.

Only the first and part of the

third Colon categories pass Iqbal’s muster.”); Bryant v. County
of Monroe, No. 09-CV-6415-CJS, 2010 WL 4877799 at *3 (W.D.N.Y.
Nov. 22, 2010) (“The Court ... is persuaded by the analysis of
... Iqbal ... in Bellamy.... ”).

Other district courts restrict

application of Iqbal to cases involving discriminatory intent.
See, e.g., Delgado v. Bezio, No. 09 Civ. 6899(LTS), 2011 WL
1842294 at *9 (S.D.N.Y. May 9, 2011) ( “‘It was with intent-based
constitutional claims in mind, specifically racial
discrimination, that the Supreme Court rejected [in Iqbal] the
argument that a supervisor’s mere knowledge of his subordinate’s
discriminatory purpose amounts to the supervisor’s violating the
Constitution.’... Thus, where the claim does not require a

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showing of discriminatory intent, the Colon analysis should still
apply, insofar as it is ‘consistent with the particular
constitutional provision alleged to have been violated.’”
(internal citations omitted)).

The Second Circuit has not yet

addressed this issue.
This court need not determine whether Iqbal applies in all
cases or just those involving discriminatory intent because the
allegations against defendants Lajoie and Quiros are insufficient
to survive summary judgment even under the Colon standard.
The defendants argue that the plaintiff has not alleged that
either defendant personally engaged in wrongful conduct, and
merely alleges formulaic statements of the elements of a claim
for supervisory liability.

Thus, they contend that the plaintiff

has not presented any facts to support a plausible claim of
supervisory liability.

The plaintiff states that defendants

Lajoie and Quiros were on notice of the violent tendencies of
certain staff members through requests and grievances submitted
by other inmates prior to October 23, 2009.

The plaintiff also

specifically reported the October 23, 2009 incident.

Rather than

take action, defendants Lajoie and Quiros denied the plaintiff’s
grievances.
The plaintiff alleges no facts and presents no evidence
suggesting that defendants Lajoie and Quiros were notified prior
to October 23, 2009, that any correctional officers had violent

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tendencies.

Although the plaintiff notified them about the

incident after it occurred, this is insufficient to establish
their personal involvement.

The plaintiff has not presented

evidence that either defendant had sufficient knowledge to have
prevented the incident.

See Odom v. Calero, No. 06 Civ.

15527(LAK)(GWG), 2008 WL 2735868, at *7 (S.D.N.Y. Jul. 10, 2008)
(holding that failure to remedy factor applies only to ongoing,
hence correctable, violations).
Further, the fact that defendants Quiros and Lajoie denied
his grievance appeal does not state a cognizable claim.

See

Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003)
(holding inmate had no protected liberty interest in having
grievances investigated to his satisfaction).
The defendants’ motion for summary judgment is granted as to
the claims against defendants Quiros and Lajoie.
2.

Kathleen Weiner

The defendants argue that the plaintiff cannot demonstrate
the personal involvement of defendant Weiner because she was not
working on the date of the incident.

The only evidence they

offer in support of this argument is defendant Weiner’s
affidavit.

Defendant Weiner’s affidavit, however, is not

notarized.

On November 1, 2011, the court granted the

plaintiff’s motion to strike this affidavit.

The defendants were

afforded until November 21, 2011, to file a completed affidavit.

11

See Doc. #76.

They failed to do so.

Accordingly, the

defendants’ motion for summary judgment is denied as to the
claims against defendant Weiner.
C.

Use of Excessive Force

The defendants contend that they did not use excessive force
against the plaintiff on October 23, 2009.

When confronted by a

disturbance, correctional officers must balance the threat the
disturbance poses to inmates, staff and others against the harm
the inmate might suffer if force is used.
quickly and under pressure.

This decision is made

When considering the use of force by

correctional officers, the court must determine “whether force
was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992) (internal quotation
marks and citation omitted).
The court considers objective and subjective components to
an excessive force claim.

See id. at 8.

The objective component

relates to the level of physical force used against the inmate
and whether that force is repugnant to the conscience of mankind.
See id. at 9-10.

The subjective component focuses on whether the

correctional officers had a “wanton” state of mind when they were
applying the allegedly excessive force.

See id. at 8.

An excessive force claim cannot be decided merely by
considering the extent of an inmate’s injuries.

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See Perkins v.

Brown, 285 F. Supp. 2d 279, 283 (E.D.N.Y. 2003) (acknowledging
that claim of excessive force may be established even if the
victim does not suffer serious or significant injury) (citations
omitted).

Instead, the court uses the extent of the inmate’s

injuries as one factor in determining whether the use of force
could have been thought necessary by correctional staff or
demonstrated an unjustified infliction of harm.
U.S. at 7.

See Hudson, 503

Other factors to be considered are the need for use

of force, the threat perceived by correctional staff and the
relationship between the perceived threat and the amount of force
used.

See id.

For example, an inmate who does not suffer

serious or significant injury may establish a claim for use of
excessive force if he can show that the force used was more than
de minimus or was repugnant to the conscience of mankind and that
the defendant acted with a sufficiently culpable state of mind.
United States v. Walsh, 194 F.3d 37, 48-50 (2d Cir. 1999).
This approach is consistent with the view that “[e]xcessive
force does not, in and of itself, establish malice or wantonness
for Eighth Amendment purposes.”

Romano v. Howarth, 998 F.2d 101,

106 (2d Cir. 1993); see, e.g., Johnson v. Blaukat, 453 F.3d 1108,
1113 (8th Cir. 2006) (stating that summary judgment should not
have been granted to two officers where the inmate provided
sufficient evidence to demonstrate that questions existed
regarding, inter alia, whether actions of correctional staff

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“were necessary to maintain order or were excessive reactions by
frustrated officers; and whether the amount of force used was
commensurate with the situation ... whether verbal orders or the
application of less force would have been sufficient, whether or
not a warning issued before application of the pepper spray”).
“Infliction of pain that is ‘totally without penological
justification’ is per se malicious.”

Hope v. Pelzer, 536 U.S.

730, 737 (2002) (quoting Rhodes v. Chapman, 452 U.S. 337, 346
(1981)).

See Roberts v. Samardvich, 909 F. Supp. 594, 604-05

(N.D. Ind. 1995) (denying summary judgment on excessive force
claims where inmate suffered 1 inch laceration which stopped
bleeding within twenty minutes, videotape of incident showed no
use of excessive force and inmate was not resisting correctional
officers; although direct evidence of malicious and sadistic
conduct was lacking, evidence could support such an inference).
The affidavits submitted by the defendants describing the
incident differ from the plaintiff’s affidavit.

Both sides in

this case rely on the videotapes submitted by the defendants.3
The videotape captured the plaintiff lunging at a correctional

3

The discs submitted with the defendants’ motion for summary
judgment were in a format that was not compatible with the
court’s computers. The defendants have substituted a disc that
is compatible. See Doc. #83. Unfortunately, the copy of the
computer screen identifying the various views is not legible and
the time stamps referenced by the parties are not present. The
court, however, has reviewed all of the material on the
substitute disc.
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officer, presumably defendant Brunetti.

Another view shows the

plaintiff struggling with correctional officers while proceeding
down a hallway.

These two views are from a distance and do not

clearly reveal the officer’s responses to the plaintiff’s
conduct.

A third view shows the plaintiff being brought to the

floor by several officers with more officers immediately
responding.

Although this view is closer, the court cannot

ascertain whether the defendants were taking protective action,
as they contend, or maliciously punching the plaintiff.
Moreover, the court cannot ascertain the identify of any of the
defendants from the video footage.

In light of this ambiguity,

there exists a genuine issue of material fact regarding the
conduct of the defendants during the incident.

Accordingly, the

defendants’ motion for summary judgment is being denied as to the
excessive force claim.
D.

Harassment and Retaliation

The defendants next contend that the plaintiff fails to
state a cognizable claim for harassment or retaliation based on
the December 10, 2009 cell search, the issuance of an allegedly
false disciplinary report for threats, and degrading or
disrespectful comments.
Prison officials may not retaliate against inmates for
exercising their constitutional rights.

To state a retaliation

claim, the plaintiff must show that his actions were protected by

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the Constitution or federal law and that his protected conduct
was a “substantial or motivating factor” in the alleged
retaliatory conduct.
(2d Cir. 2000).

Friedl v. City of New York, 210 F.3d 79, 85

Because claims of retaliation are easily

fabricated, the courts consider such claims with skepticism and
require that they be supported by specific facts; conclusory
statements are not sufficient.
F.2d 10, 13 (2d Cir. 2003).

See Flaherty v. Coughlin, 713

To support a claim of retaliation,

the allegedly retaliatory conduct must be such that it would
deter a similarly situated inmate of ordinary resolve from
exercising his constitutional rights.
the plaintiff himself be deterred.
F.3d 379, 381 (2d Cir. 2004).

It is not necessary that

See Gill v. Pidlypchak, 389

Any lesser conduct is de minimis

and does not support a retaliation claim.
239 F.3d 489, 493 (2d Cir. 2001).

See Dawes v. Walker,

Prisoners are required to

tolerate more serious conduct than public employees or private
citizens before stating a retaliation claim.

See id.

The plaintiff argues that the retaliation and harassment was
in response to his alleged assault on correctional staff.

To

support a retaliation claim, the plaintiff must have engaged in
constitutionally protected activity which motivated the
retaliatory acts.

The plaintiff has no constitutionally

protected right to assault correctional staff.

Thus, he fails to

identify a constitutionally protected activity to support his

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claims.

Thus, the plaintiff’s claims for harassment and

retaliation fail.

Therefore, the defendants’ motion for summary

judgment is being granted as to the claims for retaliation and
harassment.
E.

Qualified Immunity

Finally, the defendants argue that their actions with regard
to the alleged use of excessive force are protected by qualified
immunity.

Government officials performing discretionary

functions are protected from liability for civil damages unless
their conduct violated a clearly established statutory or
constitutional right of which a reasonable person would have been
aware.

See Pearson v. Callahan, 555 U.S. 223, 231 (2009).

The

constitutional right at issue “must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right,” although the exact issue need not have been
previously decided.
(1987).

Anderson v. Creighton, 483 U.S. 635, 640

To establish a defense of qualified immunity, the

defendant must establish that his acts did not violate a
constitutional right or, if a violation was shown, that the right
was not clearly established at the time of the incident.

See

Pearson, 555 U.S. at 232-33 (setting forth qualified immunity
test and holding that a court need not consider the questions in
any particular order).
To evaluate whether a right is clearly established, the

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court must determine whether it would be clear to a reasonable
correctional official that his conduct in these circumstances was
unlawful.

See Saucier v. Katz, 533 U.S. 194, 202 (2001).

The

analysis focuses on cases from the Supreme Court and the Second
Circuit.

See Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir.

1996).
Here, the court has determined that genuine issues of
material fact exist as to what occurred during the incident at
issue.

Thus, the court cannot, at this time, determine whether a

reasonable correctional officer would understand that his conduct
was unlawful.

Therefore, the defendants’ motion for summary

judgment on the basis of qualified immunity is being denied.
IV.

Conclusion
The defendants’ motion for summary judgment [Doc. #68] is

hereby GRANTED in part.

The motion is granted as to all claims

against defendants Quiros and Lajoie and also as to the claims
for retaliation and harassment.

The case will proceed to trial

on the remaining claims, including those claims not addressed in
the defendants’ motion.
It is so ordered.
Signed this 26th day of September, 2012 at Hartford,
Connecticut.
/s/
Alvin W. Thompson
United States District Judge
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