Jordan v. Sheehy
ORDER: Defendant's Motion 15 for Summary Judgment is GRANTED. The Clerk is directed to enter judgment in favor of Defendant and close this case. The Clerk is also directed to mail notice of this ruling to pro se Plaintiff. Signed by Judge Janet Bond Arterton on 3/11/2013. (Bonneau, J)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
VICTOR LAMOND JORDAN, SR.,
Civil No. 3:11cv1415 (JBA)
March 11, 2013
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Victor Lamond Jordan, Sr. commenced this action pro se against Defendant
Judicial Marshal Stephen Sheehy. Plaintiff contends that Defendant used excessive force against
him in that he struck him in the face during an altercation. Defendant now moves [Doc. # 15]
for summary judgment. For the reasons that follow, Defendant’s motion is granted.
On June 23, 2009, Plaintiff was taken to the Waterbury Superior Court for jury selection.
While awaiting commencement of his court proceeding, Plaintiff was held in a cell in the inmate
holding area. At approximately 10:30 a.m., Defendant was ordered to escort Plaintiff from the
holding area to a courtroom. Defendant entered Plaintiff’s cell and applied leg shackles.
During this time, a verbal exchange occurred. Jordan alleges that Defendant was rushing
him and made racially derogatory remarks and threats. Defendant contends that Plaintiff was
being verbally abusive, refused to be handcuffed and refused to attend the court proceeding.
The facts are taken from the parties’ Local Rule 56(a) Statements and attached exhibits,
including a DVD recording of the security footage of the incident in question.
Defendant left the cell to obtain assistance from another judicial marshal. Defendant
realized that the cell door was open and turned to close it, but Plaintiff had followed Defendant
out of the cell. When Defendant turned to face him, Plaintiff spat in his face. Defendant
immediately turned his head away and hit Plaintiff once in the face with his right hand. Plaintiff
lunged toward Defendant and grabbed Defendant’s left forearm. Two other judicial marshals
intervened. One of the marshals restrained Plaintiff and returned him to his cell.
Plaintiff was taken to Waterbury Hospital where he was diagnosed with a facial
contusion, that is, a bruise with swelling under the skin. Upon his return to the correctional
facility, medical staff examined Plaintiff and observed no swelling, redness or bruising. However,
a small laceration inside Plaintiff’s left lip was observed. Plaintiff complained of mild pain and
was treated with ice and Motrin.
Criminal assault charges against Plaintiff stemming from the incident were dismissed.
However, Plaintiff pled guilty to prison disciplinary charges for assaulting Defendant. He was
sanctioned with seven–days’ confinement in punitive segregation, thirty–days’ loss of recreation
and thirty–days’ loss of telephone privileges.
Defendant argues that summary judgment should be granted in his favor because Plaintiff
has failed to establish that his Eighth Amendment2 rights were violated, and because this matter
is barred by Heck v. Humphrey, 512 U.S. 477 (1994).3 To prevail on an Eighth Amendment
excessive force claim, Plaintiff must demonstrate that force used against him constituted cruel
“Summary judgment is appropriate where, “resolv[ing] all ambiguities and draw[ing] all
permissible factual inferences in favor of the party against whom summary judgment is sought,”
Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008), “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A dispute regarding a material fact is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of
Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). “The substantive law
governing the case will identify those facts that are material, and ‘[o]nly disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.’” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a motion
for summary judgment, the Court may consider depositions, documents, affidavits, interrogatory
answers, and other exhibits in the record. Fed. R. Civ. P. 56(c).
While “the right of pretrial detainees to be free from excessive force amounting to
punishment is protected by the Due Process Clause of the Fourteenth Amendment,” United
States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999), “[a]fter conviction, the Eight Amendment serves
as the primary source of substantive protection in cases where the deliberate use of force is
challenged as excessive and unjustified,” Graham v. Connor, 490 U.S. 386, 395 (1989) (citing
Whitley v. Albers, 475 U.S. 312, 327 (1986)) (internal quotation marks omitted). Although the
incident occurred when Plaintiff was taken to state court for jury selection, Department of
Correction records reveal that, in June 2009, when this incident took place, Plaintiff was already
www.ctinmateinfo.state.ct.us (last visited Mar. 11, 2012). Thus, the Eighth Amendment, not the
Fourteenth Amendment, governs Jordan’s claim. However, “[t]he Second Circuit applies the
same standard to excessive force claims brought under the Fourteenth Amendment as under the
Eighth Amendment.” Virella v. Pozzi, No. 05 Civ. 10460(RWS), 2006 WL 2707394, at *3
(S.D.N.Y. Sept. 20, 2006) (citing Walsh, 194 F.3d at 48 (“[W]e conclude that the Hudson analysis
is applicable to excessive force claims brought under the Fourteenth Amendment as well.”)).
Therefore, the Court concludes that Plaintiff’s claims would fail under either the Fourteenth or
the Eighth Amendment.
Because the Court finds that Plaintiff has not established that his constitutional rights
were violated, it will not address the Government’s Heck v. Humphrey argument.
and unusual punishment. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). A court considers
objective and subjective components to such an excessive force claim. See id. at 268 (quoting
Hudson v. McMillian, 503 U.S. 1, 7–8 (1992). 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 Hudson, 503 U.S. at 9–10; see also Wright, 554 F.2d at 268 (“The objective
component of a claim of cruel and unusual punishment focuses on the harm done, in light of
‘contemporary standards of decency.’”). The subjective component focuses on whether the
official had a “wanton” state of mind when they were applying the allegedly excessive force.
Hudson, 503 U.S. at 8.
“When prison officials are accused of using excessive force, the
wantonness issue turns on whether the force was applied in a good–faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Wright, 554 F.3d at 268
(quoting Hudson, 503 U.S. at 7). “Accordingly, where a prisoner’s allegations and evidentiary
proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers
used force maliciously and sadistically,” summary judgment is not proper. Id. at 269.
“The use of excessive force against an inmate may constitute cruel and unusual
punishment even when the inmate does not suffer serious injury,” and thus an excessive force
claim cannot be decided merely by considering the extent of an inmate’s injuries. See Wilkins v.
Gaddy, 130 S. Ct. 1175, 1176–77 (2010) (per curiam) (quoting Hudson, 503 U.S. at 4). 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. See Hudson, 503 U.S. at 7. Other factors to be considered are the need for the
use of force, the threat perceived by correctional staff, the relationship between the perceived
threat and the amount of force used, and any efforts made to temper the severity of a forceful
response. See id. (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). However, “the Eighth
Amendment’s prohibition against cruel and unusual punishment does not extend to de minimus
uses of physical force, provided that the use of force is not of a sort repugnant to the conscience
of mankind.” Wright, 554 F.3d at 269 (quoting Hudson, 503 U.S. at 10). 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 also Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quoting Rhodes v. Chapman, 452 U.S.
337, 346 (1981)).
Not surprisingly, the affidavit submitted by Defendant describing the incident differs
from Plaintiff’s affidavit. Plaintiff alleges that when Defendant entered the cell, Defendant “was
being aggressive and rushing [Plaintiff],” and that Defendant directed derogatory racial
comments toward Plaintiff. (See Jordan Aff., Ex. A to Pl.’s Opp’n [Doc. # 24] ¶ 4.) Defendant
claims that when he entered the cell, Plaintiff became verbally abusive, threatening to spit on him
and refusing to be handcuffed and escorted to the courtroom. (See Sheehy Aff., Ex. D to Def.’s
Mem. [Doc. # 15] ¶ 3.) However, both parties in this case rely on the video recording submitted
by Defendant. (See Ex. C to Def.’s Mem.) The video shows that Defendant exited the cell with
his back turned to Plaintiff, and that Plaintiff followed Defendant out of the cell. Plaintiff admits
that he threatened Defendant to “put my Black piece of dirt a** down” and then spat in
Defendant’s face. (See Pl.’s Loc. R. 56(a)(2) Stmt [Doc. # 21–1] ¶ 11.) The video then shows
Defendant striking Plaintiff once on the cheek with a closed fist, and Plaintiff grabbing
Correctional officers are allowed to use physical force against an inmate to maintain
discipline, order, safety, and security. See Department of Correction Administrative Directive
6.5(4)(A), www.ct.gov/doc.LIB/doc/PDF/ AD.ad0605.pdf (last visited , Mar. 11, 2013). 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. This
decision is made quickly and under pressure.
“Spitting on another is almost universally
acknowledged as contemptuous and is calculated to incite others to act in retaliation.” State v.
Hawley, 102 Conn. App. 551, 555 (2007).
Plaintiff, who was unrestrained, provoked a
confrontation by exiting the cell, taunting Defendant and spitting in Defendant’s face. (See
Jordan Aff., Ex. A. to Pl.’s Opp’n [Doc. # 24] ¶ 3.) Defendant responded, it appears reflexively, by
striking Jordan in the face once.
As the Supreme Court has recognized, not every malevolent touch by a prison guard gives
rise to a federal cause of action. See Hudson, 503 U.S. at 9. Thus, under circumstances similar to
those found in this case, the Third Circuit held as a matter of law that “a single punch [by a
correctional officer] to avoid being spit upon is not the sort of action that is repugnant to the
conscience of mankind.” Reyes v. Chinnici, 54 F. App’x 44, 47 (3d Cir. 2002). In Reyes, the
plaintiff was a prisoner in a high–security unit where he was handcuffed whenever he was moved
outside of his cell. Id. at 45–46. The defendant prison guard had previously told the plaintiff that
the plaintiff was “going down” if he spit at the defendant. Id. at 46. While the defendant was
returning the plaintiff, who was handcuffed, to his cell, the plaintiff pursed his lips as if to spit at
defendant. Id. In response, the defendant struck the plaintiff in the neck and shoulder. Id. The
defendant was immediately returned to his cell and received medical attention for shoulder
swelling as a result of the incident. Id. The Third Circuit upheld the district court’s grant of
summary judgment in favor of the defendant, recognizing that “it is certainly unreasonable and
would undermine institutional discipline to expect a corrections officer to simply allow himself
to be spit upon.” Id. The court also found that the amount of force used was de minimus and the
plaintiff’s injury was so minor that a court could “safely assume that no reasonable person could
conclude that a corrections officer acted maliciously and sadistically.” Id. at 48–49 (“[W]e hold
that, given the facts of this case, [the defendant’s] actions were not repugnant to the conscience of
mankind and did not violate [the plaintiff’s] Eighth Amendment right to be free from cruel and
Here, unlike in Reyes, Plaintiff had walked out of his cell, taunted Defendant, and actually
spit in Defendant’s face. As the Third Circuit recognized, it would be “unreasonable and would
undermine institutional discipline” to expect Defendant to allow himself to be spit upon without
a forceful reaction. Plaintiff’s threatening and disrespectful actions posed a threat to Defendant,
to other guards and court personnel, and to institutional discipline, the force Defendant used in
response was to strike Plaintiff only once, and Plaintiff suffered only minor injuries for which he
received swift medical attention. Several district courts have found under similar circumstances
that a single punch may constitute de minimus force for Eighth–Amendment purposes. See, e.g.,
Mason v. Rich, Civil No. 3:10cv397 (JBA), 2011 WL 4345025, at *3 (D. Conn. Sept. 15, 2011)
(single punch is de minimus where plaintiff disobeyed orders and refused to stop fighting with
another inmate); DeArmas v. Jaycox, No. 92 Civ. 6139 (LMM), 1993 WL 37501, at *4 (S.D.N.Y.
Feb. 8, 1993), aff’d, 14 F.3d 591 (2d Cir. 1993) (finding force used was de minimus where
defendant punched plaintiff in the arm and kicked him in the leg, allegedly in retaliation for
bringing a grievance against defendant); Ramos v. Hicks, No. 87 Civ. 2272 (LBS), 1988 WL 80176,
at *2 (S.D.N.Y. July 25, 1988) (single punch to the mouth resulting in a cut lip not excessive force
where inmate ignored orders, became agitated and attempted to damage state property); see also
Smith v. Hulick, No. 97-801, 1998 WL 84019 (E.D. Pa. Feb. 25, 1998), aff’d, 208 F.3d 206 (3d Cir.
2000) (summary judgment granted for defendant correctional officer where defendant punched
plaintiff, who was not in restraints, once in the face and tackled the plaintiff after the plaintiff
Thus, based on an analysis of the Hudson factors, the force used by
Defendant under the circumstances was not of the kind that is “repugnant to the conscience of
The only disputed facts in this case relate to whether or not Defendant made
inflammatory racial comments to Plaintiff before exiting Plaintiff’s cell.
harassment and name calling, absent physical injury, are not constitutional violations cognizable
under Section 1983,” the Second Circuit has recognized that such taunts may be evidence of
malicious intent under some circumstances. See Cole v. Fischer, 379 F. App’x 40, 43 (2d Cir.
2010). In Cole, the Second Circuit found that it was possible to infer the defendant’s use of force
was malicious where the defendant, while striking the plaintiff in the face without provocation,
“simultaneously made racially and religiously derogatory remarks,” after the plaintiff turned
down the defendant’s offer of a corrupt deal. Id. at 42. However, in this case, at the time of
Plaintiff’s actions, Defendant had his back turned and was not speaking to Plaintiff. Thus any
alleged taunts by Defendant had ended. Furthermore, Defendant struck Plaintiff only after the
intervening provocation by Plaintiff, daring Defendant to “put [Plaintiff’s] Black piece of dirt a**
down” and spitting in Defendant’s face. Thus, unlike the circumstances in Cole, Defendant’s
alleged verbal abuse was not contemporaneous with his use of force so as to demonstrate
malicious intent, and Defendant use of force was a direct and immediate response to Plaintiff’s
verbal and physical provocation. Therefore, even taking Plaintiff’s version of events as true,
reasonable jurors could not find, given Plaintiff’s admitted provocation and his minimal injuries,
that Defendant acted with malicious intent to harm Plaintiff.
Applying the Hudson factors, Plaintiff has not offered evidence establishing that the force
used by Defendant is “repugnant to the conscience of mankind,” and thus Plaintiff has failed to
establish the objective component of his cruel and unusual punishment claim. Therefore, his
excessive force claim does not rise to the level of an Eighth Amendment violation cognizable
under Section 1983.
For the reasons discussed above, Defendant’s Motion for Summary Judgment [Doc. #15]
is GRANTED. The Clerk is directed to enter judgment in favor of Defendant and close this case.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 11th day of March, 2013.
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