Velez v. Falcone et al
PRISCS-INITIAL REVIEW ORDER, ( Discovery due by 4/18/2013, Dispositive Motions due by 5/18/2013), Answer updated for Chicano to 10/30/2012; Cox to 10/30/2012; Deeb to 10/30/2012; Falcone to 10/30/2012; Garraffo to 10/30/2012; Gary Hancock to 10/30/2012; Harper to 10/30/2012; Scott Langenheim to 10/30/2012; Machado to 10/30/2012; Ostuno to 10/30/2012; Reilly to 10/30/2012.. Signed by Judge Janet Bond Arterton on 9/18/2012. (Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CASE NO. 3:12-cv-212(JBA)
CAPTAIN FALCONE, et al.,
INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at Bridgeport
Correctional Center in Bridgeport, Connecticut, has filed a
complaint pro se under 42 U.S.C. § 1983.
The plaintiff sues
Correctional Officers Langenheim, Hancock, Harper, Ostuno, Chicano,
Garraffo, Machado and Deeb, K-9 Officer Cox, Captain Falcone and
Pursuant to 28 U.S.C. § 1915A(b), the Court must review
prisoner civil complaints against governmental actors and “dismiss
... any portion of [a] complaint [that] is frivolous, malicious, or
fails to state a claim upon which relief may be granted,” or that
“seeks monetary relief from a defendant who is immune from such
This requirement applies both where the inmate has
paid the filing fee and where he is proceeding in forma pauperis.
See Carr v. Dvorin, 171 F.3d 115 (2d Cir. 1999) (per curiam).
8 of the Federal Rules of Civil Procedure requires that a complaint
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although detailed allegations are not required, “a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.
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.”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks and citations omitted).
A complaint that includes only “‘labels and conclusions,’ ‘a
formulaic recitation of the elements of a cause of action’ or
‘naked assertion[s]’ devoid of ‘further factual enhancement,’ ”
does not meet the facial plausibility standard.
Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).
courts still have an obligation to liberally construe a pro se
complaint, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the
complaint must include sufficient factual allegations to meet the
standard of facial plausibility.
The plaintiff alleges that on January 8, 2010, at Garner
Correctional Institution, Officers Langenheim, Harper, Ostuno,
Chicano, Garraffo and Machado used excessive force against him as
they forcibly removed him from his cell.
The plaintiff claims that
Officers Hancock and Deeb, Lieutenant Reilly, Captain Falcone and
K-9 Officer Cox stood by and watched the use of excessive force,
but took no action to intervene.
The plaintiff seeks monetary
The court concludes that the allegations in the complaint
state plausible claims of excessive force and failure to protect
against the defendants in their individual capacities.
Accordingly, the case will proceed as to these claims and the state
law claims of assault, battery and intentional infliction of
The court enters the following orders:
The federal and state law claims in the complaint shall
proceed against the defendants in their individual capacities.
By 10/2/12, the Pro Se Prisoner Litigation Office shall
ascertain from the Department of Correction Office of Legal Affairs
the current work addresses for the defendants and mail waiver of
service of process request packets to each defendant in his or her
individual capacity at his or her current work address.
thirty-fifth (35th) day after mailing, the Pro Se Office shall
report to the court on the status of all waiver requests.
defendant fails to return the waiver request, the Clerk shall make
arrangements for in-person service by the U.S. Marshals Service and
the defendant shall be required to pay the costs of such service in
accordance with Federal Rule of Civil Procedure 4(d).
The Pro Se Prisoner Litigation Office shall send a
courtesy copy of the complaint and this Order to the Connecticut
Attorney General and the Department of Correction Legal Affairs
The Pro Se Prisoner Litigation Office shall send written
notice to the plaintiff of the status of this action, along with a
copy of this Order.
Defendants shall file their response to the complaint,
either an answer or motion to dismiss, by 10/30/12.
defendants choose to file an answer, they shall admit or deny the
allegations and respond to the cognizable claims recited above.
They may also include any and all additional defenses permitted by
the Federal Rules.
Discovery, pursuant to Federal Rules of Civil Procedure
26 through 37, shall be completed by 4/18/13.
need not be filed with the court.
All motions for summary judgment shall be filed by
Pursuant to Local Civil Rule 7(a), a non-moving party
must respond to a dispositive motion within twenty-one (21) days of
the date the motion was filed.
If no response is filed, or the
response is not timely, the dispositive motion can be granted
SO ORDERED at New Haven, Connecticut this 18th day of
JANET BOND ARTERTON
UNITED STATES DISTRICT JUDGE
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