Luciano v. Semple et al

Filing 5

PRISCS-INITIAL REVIEW ORDER, Answer deadline updated for Allen to 2/6/2013; J. Fargo to 2/6/2013; Langenheim to 2/6/2013; Mitchell to 2/6/2013; Morris to 2/6/2013; Ross to 2/6/2013; Scott Semple to 2/6/2013; Swan to 2/6/2013., ( Discovery due by 6/28/2013, Dispositive Motions due by 7/29/2013). Signed by Judge Vanessa L. Bryant on 11/28/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JUSTICE LUCIANO,
Plaintiff,
PRISONER
CASE NO. 3:12-cv-1142(VLB)

v.
WARDEN SCOTT SEMPLE, et al.,
Defendants.

INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at MacDougall Correctional Institution in
Somers, Connecticut, has filed a complaint pro se under 42 U.S.C. § 1983. The
plaintiff sues Warden Scott Semple, Counselor Supervisor J. Fargo, Lieutenants
Allen, Capellaro, Morris and Langenheim, Correctional Officers Ross, Mitchell, Swan
and John Does Nos. 1-8.
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 in April 2012, he was confined at Garner Correctional
Institution. On April 8, 2012, Officer Ross was harassing him and his cellmate and
attempted to search their cell. The plaintiff and his cellmate refused to let Officer
Ross search their cell. Lieutenant Allen came to the plaintiff’s cell and spoke to
Officer Ross. Officer Ross insisted that the plaintiff and his cellmate be sent to
segregation for refusing to consent to a cell search. The plaintiff and his cellmate
refused to go to segregation.
Lieutenant Allen requested that Lieutenants Capellaro, Langenheim and
Morris come to the plaintiff’s cell to attempt to convince the plaintiff and his
cellmate to consent to go to segregation. When the plaintiff and his cellmate
refused to cooperate, a cell extraction team proceeded to the plaintiff’s cell. The
cell extraction team was made up of Officers Mitchell and Swan and John Does Nos.
1-8 and was led by Lieutenant Morris.

One of the lieutenants at the scene, sprayed cap stun into the plaintiff’s cell
when he and his cellmate refused to come to the trap door of the cell to be
handcuffed. The plaintiff and his cellmate then lay down on their bunks. The cell
extraction team stormed into the plaintiff’s cell and used excessive force against the
plaintiff. The plaintiff did not resist at any time. The plaintiff was dragged from the
cell, decontaminated for thirty seconds in a shower, escorted to a different cell and
placed in a handcuffs, leg shackles and belly chain and a black box. The plaintiff
remained in in-cell restraints for over sixty hours. Warden Semple refused to take
any action in response to the alleged use of excessive force.
The plaintiff sustained a black eye and scars from the wrist restraints and
continues to suffer from blurriness in his left eye, migraine headaches, reduced
hearing in his left ear and anxiety as a result of the incident. The plaintiff seeks
declaratory and injunctive relief and monetary damages.
The court concludes that the allegations in the complaint state plausible
claims of excessive force and failure to protect. To the extent that plaintiff asserts
section 1983 claims against the defendants in their official capacities, the claims for
money damages are barred by the Eleventh Amendment. See Kentucky v. Graham,
473 U.S. 159 (1985) (Eleventh Amendment, which protects the state from suits for
monetary relief, also protects state officials sued for damages in their official
capacity); Quern v. Jordan, 440 U.S. 332, 342 (1979) (Section 1983 does not override
a state’s Eleventh Amendment immunity). The section 1983 claims for money
damages against the defendants in their official capacities are dismissed pursuant
to 28 U.S.C. § 1915A(b)(2).

ORDERS
The court enters the following orders:
(1)

The claims for money damages against the defendants

in their official capacities are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(2). The
remaining claims shall proceed against the defendants in their individual capacities
and in their official capacities to the extent that the plaintiff seeks injunctive and
declaratory relief.
(2)

Within fourteen (14) days of this Order, the U.S. Marshals Service shall

serve the summons, a copy of the Complaint [doc. #1] and this Order on the
defendants in their official capacities by delivering the necessary documents in
person to the Office of the Attorney General, 55 Elm Street, Hartford, CT 06141.
(3)

Within fourteen (14) days of this Order, the Pro Se Prisoner Litigation

Office shall ascertain from the Department of Correction Office of Legal Affairs the
current work addresses for defendants Warden Scott Semple, Counselor Supervisor
J. Fargo, Lieutenants Allen, Capellaro, Morris and Langenheim and Correctional
Officers Ross, Mitchell and Swan 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).

(4)

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.
(5)

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.
(6)

Defendants shall file their response to the complaint, either an answer

or motion to dismiss, within seventy (70) days from the date of this order. 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.
(7)

Discovery, pursuant to Federal Rules of Civil Procedure

26 through 37, shall be completed within seven months (210 days) from the date of
this order. Discovery requests need not be filed with the court.
(8)

All motions for summary judgment shall be filed within

eight months (240 days) from the date of this order.
(9)

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.
(10)

The plaintiff is hereby notified that the U.S. Marshal

cannot serve the complaint on the John Does Nos. 1-8 until the plaintiff identifies
these defendants by name. The plaintiff will have 90 days from the date of this order

to conduct discovery and file a notice identifying these defendants by name. If the
plaintiff fails to file a notice within the time specified, the claims against these
defendants will be dismissed without further notice from the court pursuant to Rule
4(m), Fed. R. Civ. P. and the case will proceed only as to the claims against the other
named defendants in the complaint.

IT IS SO ORDERED.
________/s/________________
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: November 28, 2012.