Velez v. Falcone et al

Filing 5

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
ALEX VELEZ,
Plaintiff,
PRISONER
CASE NO. 3:12-cv-212(JBA)

v.
CAPTAIN FALCONE, et al.,
Defendants.

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
Lieutenant Reilly.
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
relief.”

Id.

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).

Rule

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)).

Although

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

damages.
The court concludes that the allegations in the complaint
state plausible claims of excessive force and failure to protect
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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
emotional distress.
ORDERS
The court enters the following orders:
(1)

The federal and state law claims in the complaint shall

proceed against the defendants in their individual capacities.
(2)

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.

On the

thirty-fifth (35th) day after mailing, the Pro Se Office shall
report to the court on the status of all waiver requests.

If any

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).
(3)

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
Unit.
(4)

The Pro Se Prisoner Litigation Office shall send written

notice to the plaintiff of the status of this action, along with a
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copy of this Order.
(5)

Defendants shall file their response to the complaint,

either an answer or motion to dismiss, by 10/30/12.

If the

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.
(6)

Discovery, pursuant to Federal Rules of Civil Procedure

26 through 37, shall be completed by 4/18/13.

Discovery requests

need not be filed with the court.
(7)

All motions for summary judgment shall be filed by

5/18/12.
(8)

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
absent objection.
SO ORDERED at New Haven, Connecticut this 18th day of
September, 2012.

/s/ _______________________________
JANET BOND ARTERTON
UNITED STATES DISTRICT JUDGE

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