Mayor v. Alves et al
PRISCS-INITIAL REVIEW ORDER, Answer deadline updated for John Alves to 5/6/2013., ( Discovery due by 9/26/2013, Dispositive Motions due by 10/25/2013), Bret C. Johnson (#266 of Branford Police Department), Paul Perrotti (#223 of Branford Police Department), Michael Bonfiglio (#193 of Branford Police Department) and J. Finkle (Lt, #139 of Branford Police Department) terminated. Signed by Judge Alvin W. Thompson on 2/26/2013.(Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN D. MAYOR,
CASE NO. 3:12-cv-1338 (AWT)
OFFICER JOHN ALVES, ET AL.,
RULING AND ORDER
The plaintiff, John D. Mayor, who is incarcerated and
proceeding pro se, has filed a complaint pursuant to 42 U.S.C.
He names Branford Police Officers John Alves, Bret C.
Johnson, Michael Bonfiglio, Paul Perrotti, Lieutenant J. Finkle
and the Branford Police Department as defendants.
The plaintiff alleges that on October 2, 2010, he was
involved in an incident involving a gang of five bullies at the
Chowder Pot Restaurant in Branford, Connecticut.
attempted to retreat from the gang, Branford Police Officer Alves
shined a bright light from his police car into the plaintiff's
face, one of the gang members kicked him, and he fell to the
Officer Alves then exited his vehicle, grabbed the
plaintiff by the back of the neck, smashed his face into the rear
window of the police car and placed him in handcuffs.
Alves then twisted the plaintiff’s arm out of its socket and
pushed him into the back of the police car, fracturing the
plaintiff's ribs on the door hinges.
The plaintiff suffered a
dislocated shoulder, an ankle sprain, fractured ribs, a ruptured
ear drum, dizziness and blurred vision.
The plaintiff seeks
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.”
This requirement applies both
where the inmate has paid the filing fee and where he is
proceeding in forma pauperis.
(2d Cir. 1999) (per curiam).
See Carr v. Dvorin, 171 F.3d 115
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.
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.”
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
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
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.
In order to state a claim for relief under 42 U.S.C. § 1983,
the plaintiff must satisfy a two-part test.
First, the plaintiff
must allege facts demonstrating that the defendant acted under
color of state law.
Second, the plaintiff must allege facts
demonstrating that he has been deprived of a constitutionally or
federally protected right.
See Lugar v. Edmondson Oil Co., 457
U.S. 922, 930 (1982); Washington v. James, 782 F.2d 1134, 1138
(2d Cir. 1986).
There is no mention of Branford Police Officers Bret C.
Johnson, Michael Bonfiglio, Paul Perrotti and Lieutenant J.
Finkle in the body of the complaint.
Thus, the plaintiff has not
alleged that defendants Johnson, Bonfiglio, Perrotti or Finkle
violated his federally or constitutionally protected rights.
claims against these defendants are dismissed pursuant to 28
U.S.C. § 1915A(b)(1) as lacking an arguable legal or factual
Municipal police departments are not independent legal
entities and are not subject to suit under section 1983.
Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 164 (D. Conn.
Thus, the complaint must be dismissed as to the Branford
Police Department pursuant to 28 U.S.C. § 1915A(b)(1) as lacking
an arguable legal basis.
Because the plaintiff’s allegations against Branford Police
Officer Alves pertain to the use of force during his arrest, the
court construes these claims of excessive force against defendant
Alves as brought pursuant to the Fourth Amendment.
v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (“Excessive force
used by officers arresting suspects implicates the Fourth
Amendment’s prohibition on unreasonable seizures, rather than the
Fourteenth Amendment’s guarantee of substantive due
The plaintiff sues defendant Alves
in his official and individual capacities.
Any claim against a
municipal official or employee in his official capacity is
considered to be a claim against the municipality.
See Hafer v.
Melo, 502 U.S. 21, 25 (1991).
In Monell v. Department of Social Service, 436 U.S. 658, 691
(1978), the Supreme Court set forth the test for municipal
To establish municipal liability for the allegedly
unconstitutional actions of a municipal employee, the plaintiff
must “plead and prove three elements: (1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.”
Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007) (citation omitted).
cannot be held liable under 42 U.S.C. § 1983 solely on a theory
of respondeat superior.
See Monell, 436 U.S. at 694-95.
plaintiff must demonstrate “a direct causal link between a
municipal policy or custom, and the alleged constitutional
City of Canton v. Harris, 489 U.S. 378, 385
The plaintiff has alleged no facts to suggest the existence
of a municipal policy or custom in this case.
The incident he
describes regarding the use of force by Officer Alves is
presented as an isolated occurrence.
See Stengel v. City of
Hartford, 652 F. Supp. 572, 574 (D. Conn. 1987) (noting that a
claim of municipal policy or custom requires allegations
consisting of more than a single isolated incident).
plaintiff has not alleged facts suggesting that the force used
against him by defendant Alves is something that also occurred at
other times, the plaintiff fails to state a claim for monetary
damages against defendant Alves in his official capacity.
official capacity claim against Officer Alves is dismissed.
28 U.S.C. § 1915A(b)(1).
After reviewing the allegations as to defendant Alves in
his individual capacity, the court concludes that the case should
proceed at this time as to the Fourth Amendment claim of
excessive force against this defendant.
The court enters the following orders:
All claims against the Branford Police Department and
defendants Johnson, Bonfiglio, Perrotti and Finkle and all claims
against defendant Alves in his official capacity are hereby
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
The claim against
defendant Officer John Alves in his individual capacity shall
Within fourteen (14) business days of this Order, the
Pro Se Prisoner Litigation Office shall mail a waiver of service
of process request packet to defendant Officer John Alves in his
individual capacity at the Branford Police Department, 33 Laurel
Street, Branford, CT 06405.
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 the defendant fails to return
the waiver request, the Clerk shall make arrangements for inperson 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
written notice to the plaintiff of the status of this action,
along with a copy of this Order.
The defendant shall file his response to the complaint,
either an answer or motion to dismiss, within seventy (70) days
from the date of this order.
If the defendant chooses to file an
answer, he shall admit or deny the allegations and respond to the
cognizable claims recited above.
He 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 within seven months (210 days)
from the date of this order.
Discovery requests need not be
filed with the court.
All motions for summary judgment shall be filed within
eight months (240 days) from the date of this order.
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
It is so ordered.
Dated at Hartford, Connecticut this 26th day of February
Alvin w. Thompson
United States District Judge
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