Trabakoulos v. Murphy et al

Filing 5

INITIAL REVIEW ORDER. The claims for money damages against the defendants in their individual capacities for violations of the Eighth Amendment, and the state law claims for damages, will be allowed to proceed. All other claims, including all the claims against Arnone and Trestman, are dismissed. See attached. Signed by Judge Robert N. Chatigny on 10/28/2013.(Warden Rodgers, H.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NICHOLAS TRABAKOULOS,
Plaintiff,

:
:

v.

:

BRIAN MURPHY, et al.,

:

Defendants.

PRISONER
CASE NO. 3:13-cv-114(RNC)

:
INITIAL REVIEW ORDER

Plaintiff Nicholas Trabakoulos, currently incarcerated at
MacDougall Correctional Institution, brings this action pro se
pursuant to 42 U.S.C. § 1983 claiming that he suffered physical
and emotional injuries while incarcerated at Northern
Correctional Institution due to his placement in in-cell
restraints during two time periods in 2010.

The plaintiff

alleges that the defendants' actions violated his rights under
the Eighth Amendment, state law and international law.

The

plaintiff seeks money damages plus declaratory and injunctive
relief.

Named as defendants are: Commissioner Brian Murphy,

Commissioner Leo Arnone, Warden Angel Quiros, Deputy Warden John
Faucher, Captains Dennis Oglesby, Jason Cahill and John Doe #1,
Lieutenants Michael Pafumi, Molden, Bellerose, Artz, Rivera, M.
Saylor, Perkins, Daire, Brian Siwicki and Anaya, Correctional
Officers Zeiller, Hartley, Cote, Wiener, Welch, Amaral, Wright,
Blais, Shropshire, Orcutt, S. Jones, John Doe #2, John Doe #3,
John Doe #4, John Doe #5, John Doe #6, John Doe #7, John Doe #8,

John Doe #9, John Doe #10, John Doe #11 and John Doe #12,
Executive Director of Correctional Managed Health Care Robert
Trestman and Nurses Shannon Lawrence, Domina, Paul Wilbur, Lyman
and John Doe #13, Jane Doe #14 and John/Jane Doe #15.
Under 28 U.S.C. § 1915A(b), the court must review a
prisoner's complaint against government officials and “dismiss
... any portion of [a] complaint [that] is frivolous, malicious,
or fails to state a claim upon which relief may be granted,” or
“seeks monetary relief from a defendant who is immune from such
relief.”

Id.

To withstand this screening, “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).
The Court concludes that the complaint adequately alleges
§ 1983 claims for damages against the defendants in their
individual capacities for violations of the Eighth Amendment, as
well as state law claims for damages, but that the other claims
must be dismissed.
I.

The Allegations of the Complaint
The complaint alleges the following.

On January 18, 2010,

at approximately 8:45 a.m., defendant Zeiller began to escort the
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plaintiff to recreation at Northern Correctional Institution.
Before the plaintiff reached the recreation yard, defendant
Zeiller pinched and squeezed the plaintiff’s upper arm, slammed
the plaintiff into a plexiglass window and informed the plaintiff
that he would be transferred to a strip-cell and placed in incell restraints.
Defendants Pafumi and John Does ##2-12 arrived at the scene
in response to a call from defendant Zeiller.

All of the

defendants then escorted the plaintiff to a strip-cell.

They

placed the plaintiff in in-cell restraints, including handcuffs,
leg shackles and a tether chain connecting the handcuffs to the
leg shackles.

The plaintiff claims that these defendants used

excessive force in securing the handcuffs and leg shackles too
tightly and fastening the tether chain in such a way that he
could not stand up straight.

Nurse John Doe #13 came to the cell

and checked the restraints, but failed to listen to the
plaintiff’s complaints that the restraints were too tight and
that he was in pain.
Approximately thirty minutes later, defendant Zeiller
falsely reported that the plaintiff was smashing the restraints
on the floor of the cell.

Zeiller called defendant Pafumi to

come and place a black box device over the plaintiff’s wrists,
further limiting his ability to move his hands.

Because the

black box restraint and tether chain were applied too tightly,
the plaintiff had difficulty breathing and could not stand
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upright.

Nurse John/Jane Doe #13 again checked the restraints,

but ignored the plaintiff’s complaints that the restraints were
too tight and that he was in pain.
Defendants Pafumi and Zeiller refused to give the plaintiff
lunch or release him from restraints to enable him to use the
toilet.

Defendants Oglesby, Saylor, Rivera, Cahill and Quiros

knew or should have known that the plaintiff had been placed in
restraints including the black box.

They failed to monitor the

plaintiff during his confinement in restraints as required by
certain Department of Correction Administrative Directives.
At approximately 5:00 p.m., defendant Molden came by the
plaintiff’s cell, but refused to remove the restraints to permit
the plaintiff to eat his dinner or use the toilet.

Defendant

Nurse Jane Doe #14 refused to loosen the restraints to permit the
plaintiff to use the toilet and did not respond to his complaints
of pain.
Defendants Bellerose and Artz refused to remove the
restraints to permit the plaintiff to use the toilet at any time
from 11:00 p.m. to 7:00 a.m. the next morning.

The plaintiff was

in excruciating pain and could not sleep during the night of
January 18, 2010 and early morning of January 19, 2010.

The

restraints were removed during the morning of January 19, 2010.
On November 25, 2010, at approximately 7:45 a.m., the
plaintiff was involved in a physical altercation with another
inmate in the recreation yard.

Defendants Cote, Welch, Pafumi
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and Weiner placed the plaintiff in handcuffs and leg shackles and
escorted him to a cell to be placed on in-cell restraints.
Defendants Cote, Welch, Pafumi, Weiner and Hartley used
excessive force against the plaintiff in placing him in in-cell
restraints, including handcuffs, leg shackles and a tether chain
connecting the hand cuffs to the leg shackles.

Again, the

restraints were applied too tightly and the tether chain was
fastened in such a way that the plaintiff could not stand
upright.

Defendant Lawrence, a nurse, checked the restraints,

but failed to listen to the plaintiff’s complaints that the
restraints were too tight and that he was in pain.
The plaintiff remained in in-cell restraints until November
27, 2010.

Defendant Hartley refused to give the plaintiff lunch

or release him from restraints to enable him to use the toilet.
Defendants Faucher, Perkins and Oglesby failed to monitor or
check the plaintiff.

Defendants Cahill, Perkins, Daire, Siwicki,

Anaya, Hartley, Cote, Wiener, Welch, Amaral, Shropshire, Blais,
Wright, Orcutt, Jones, Lawrence, Domina, Wilbur, Lyman, Faucher
and Does ##13-15 were aware that the plaintiff was in pain due to
the improper application of restraints, but failed to take any
action to relieve the plaintiff’s pain or loosen the restraints.
In addition, after the plaintiff’s cell flooded, these defendants
refused to remove the plaintiff from the cell.

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II.

Analysis
Accepting the plaintiff's allegations as true, they are

sufficient to support claims for damages against the defendants
in their individual capacities for depriving the defendant of his
rights under the Eighth Amendment.

More specifically, the

allegations depict unconstitutional conditions of confinement,
use of excessive force and deliberate indifference to the
inmate's safety.

Thus, these claims will be allowed to proceed.

Any § 1983 claims for damages against the defendants in
their official capacities are barred by the Eleventh Amendment.
See Kentucky v. Graham, 473 U.S. 159 (1985) (Eleventh Amendment
immunity protects state official sued for damages in official
capacity); Quern v. Jordan, 440 U.S. 332, 342 (1979) (section
1983 does not override a state’s Eleventh Amendment immunity).
Accordingly, all such claims will be dismissed pursuant to 28
U.S.C. § 1915A(b)(2).
The § 1983 claims for injunctive and declaratory relief will
also be dismissed.

The claims for injunctive relief became moot

when the plaintiff was transferred from Northern.
v. Goord, 467 F.3d 263, 272 (2d Cir. 2006);
Henderson, 542 F.2d 1, 2 (2d Cir. 1976).

See Salahuddin

Mawhinney v.

Claims for declaratory

relief are inappropriate when, as here, injuries have already
been sustained.

See National Union Fire Ins. Co. of Pittsburgh,

Pa. v. International Wire Group, Inc., No. 02 Civ. 10338, 2003 WL
21277114, at *5 (S.D.N.Y. June 2, 2003).
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The allegations of the complaint adequately support claims
for damages under state law for battery, negligence and
intentional infliction of emotional distress.

Thus, these claims

also will be allowed to proceed.
The claims under international law will be dismissed.

None

of the sources of international law mentioned in the complaint
provides the basis for a cause of action.

The Universal

Declaration of Human Rights, the Declaration on the Protection of
All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and the Standard
Minimum Rules for the Treatment of Prisoners are non-binding
resolutions that do not confer rights on individuals.

See Sosa

v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004); Serra v. Lappin,
600 F.3d 1191, 1197 (9th Cir. 2010); Hawkins v. Comparet-Cassani,
33 F. Supp. 2d 1244, 1257 (C.D. Cal. 1999), reversed in part on
other grounds, 251 F.3d 1230 (9th Cir. 2001).

The International

Covenant on Civil and Political Rights does not bind federal
courts because the treaty is not self-executing and Congress has
yet to enact implementing legislation.

See Hurtado v. U.S. Atty.

Gen., 401 Fed. Appx. 453, 456 (11th Cir. 2010).

The Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment ("CAT") is not self-executing and does not create
judicially enforceable rights unless given effect by implementing
legislation.
2007).

See Pierre v. Gonzalez, 502 F.3d 109, 110 (2d Cir.

The United States has enacted several statutes and
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regulations to fulfill its obligations under Articles 3, 4 and 5
of CAT, but neither the statute nor the regulations apply to the
plaintiff’s situation.

The American Convention on Human Rights

does not have the force of law in this country because it has not
been ratified.

See Flores-Nova v. Attorney General, 652 F.3d

488, 495 & n.7 (3d Cir. 2011).
ORDERS
The Court enters the following orders:
(1) The § 1983 claims for money damages against the
defendants in their individual capacities for violations of the
Eighth Amendment, and the state law claims for damages for
battery, negligence and intentional infliction of emotional
distress, will be allowed to proceed against all the defendants
named in the caption of the complaint except Arnone and Trestman,
who have been sued in their official capacities only.
(2) All other claims, including the claims against Arnone
and Trestman, are dismissed.

See 28 U.S.C. § 1915A(b)(1).

(3) No new claims will be permitted in this action except
pursuant to an order granting a properly filed motion for leave
to amend.
(4)

Within fourteen (14) days of this Order, the Clerk

shall ascertain from the Department of Correction Office of Legal
Affairs the current work address for each defendant in his or her
individual capacity and mail waiver of service of process request
packets to each defendant in his or her individual capacity at
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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 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).
(5)

The Clerk shall send a courtesy copy of the Complaint

and this Order to the Connecticut Attorney General and the
Department of Correction Legal Affairs Unit.
(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.
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If no response is filed, or

the response is not timely, the dispositive motion can be granted
absent objection.
(10) If the plaintiff's mailing address changes at any time
during the litigation of this case, Local Court Rule 83.1(c)2
provides that he MUST notify the court.
result in the dismissal of the case.

Failure to do so can

The plaintiff must give

notice of a new address even if he is incarcerated.

The

plaintiff should write “PLEASE NOTE MY NEW ADDRESS.”

It is not

enough to just put the new address on a letter without indicating
that it is a new address.

If the plaintiff has more than one

pending case, indicate the case numbers in the notification of
change of address.

The plaintiff should also notify the

defendant(s) or the attorney for the defendant(s), if
appropriate, of his or her new address.
(11) The plaintiff is hereby notified that the U.S. Marshal
cannot serve the complaint on Captain John Doe #1, Correctional
Officers John Doe #2, John Doe #3, John Doe #4, John Doe #5, John
Doe #6, John Doe #7, John Doe #8, John Doe #9, John Doe #10, John
Doe #11 and John Doe #12 and Nurses John Doe #13, Jane Doe #14
and John/Jane Doe #15.

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 the
unnamed defendants will be dismissed without further notice from
the court pursuant to Fed. R. Civ. P. 4(m), and the case will
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proceed only as to the claims against defendants Brian Murphy,
Angel Quiros, Faucher, Dennis Oglesby, Jason Cahill, Michael
Pafumi, Molden, Bellerose, Artz, Rivera, M. Saylor, Perkins,
Daire, Brian Siwicki, Anaya, Zeiller, Hartley, Cote, Wiener,
Welch, Amaral, Wright, Blais, Shropshire, Orcutt, Mike S. Jones,
Shannon Lawrence, Domina, Paul Wilbur and Lyman.
So ordered this 28th day of October, 2013.

_________________/s/_______________
Robert N. Chatigny
United States District Judge

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