Gulley v. Semple et al

Filing 10

INITIAL REVIEW ORDER. Discovery due by 8/21/2017. Dispositive Motions due by 9/20/2017 Signed by Judge Michael P. Shea on 1/23/2017. (Connelly, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHAZ O. GULLEY,
Plaintiff,
v.
LIEUTENANT SEMPLE, et al.,
Defendants.

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CASE NO. 3:16-cv-1575 (MPS)

JANUARY 23, 2017

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INITIAL REVIEW ORDER RE AMENDED COMPLAINT
Plaintiff Chaz O. Gulley, currently incarcerated, has filed an amended complaint in
accordance with the Court’s December 21, 2016 Order. The plaintiff asserts a claim for use of
excessive force against defendants Captain Shabenas, Lieutenant Perez, Lieutenant
Shweighoffer, Captain Korch, Correctional Officer Pearson and Captain Doughthery. All
defendants are named in individual and official capacities.
The Court must review prisoner civil complaints and dismiss any portion of the
complaint that is frivolous or malicious, that 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. 28
U.S.C. § 1915A. In reviewing a pro se complaint, the Court must assume the truth of the
allegations, and interpret them liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although detailed allegations are not
required, the complaint must include sufficient facts to afford the defendants fair notice of the
claims and the grounds upon which they are based and to demonstrate a plausible right to relief.

Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not
sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts
to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
I.

Allegations
On April 11, 2016, the plaintiff was transferred from Corrigan Correctional Institution

(“Corrigan”) to Walker Correctional Institution (“Walker”). His transfer coincided with the
service of a federal complaint in another federal civil rights action filed by the plaintiff. Walker
houses the Security Risk Group Program, phases one and two. The plaintiff had been housed in
phase three of the program at Corrigan. Even though the conditions at Walker were more
restrictive, the plaintiff was relieved at the transfer because he had no negative confrontations
with correctional staff at Walker.
On July 11, 2016, the plaintiff was transferred back to Corrigan. The plaintiff was
confused about the transfer and became paranoid. He told Mental Health staff Linda that he did
not feel safe. In response, Mental Health staff placed the plaintiff on Behavior Observation
Status in the restrictive housing unit. The lieutenant escorting the plaintiff to restrictive housing
told him that the administration would see him in the morning.
On July 12, 2016, Warden Santiago, Deputy Warden Zegarzewski, and Captain Shabenas
stopped at the plaintiff’s cell. The plaintiff repeatedly asked why he was back at Corrigan when
he was transferred because he had filed a civil lawsuit. Captain Shabenas told the plaintiff that
they did not care about his lawsuit. The officials believed that the plaintiff had a sexual
relationship with a female officer and, once the officer had transferred to a different correctional
facility, the plaintiff was brought back to Corrigan. Captain Shabenas also stated that they were
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suspicious of the relationship between the plaintiff and supervising psychologist Coursen. The
plaintiff claimed a professional relationship only.
When the officials continued their tour of the unit, Lieutenant Perez inquired about the
relationship between the plaintiff and Dr. Coursen. He stated that Dr. Coursen was making
enemies because she reports improper conduct by correctional staff. Lieutenant Perez offered to
have the plaintiff transferred back to general population if he would help set up Dr. Coursen.
The plaintiff ignored the offer.
Between July 12, 2016, and August 16, 2016, the plaintiff requested mental health
services about twice each week for complaints of agitation, stress, depressing moods, and
paranoid thoughts. Mental Health Social Worker Matt told the plaintiff that Dr. Coursen was on
vacation but would see him when she returned. No other mental health staff member would treat
the plaintiff until Dr. Coursen returned, because she had been seeing him weekly and had the
best rapport with him.
The plaintiff wrote several letters to Commissioner Semple regarding his Security Risk
Group status and placement. Commissioner Semple referred the letters to Director of Security
Whidden, who had not removed the plaintiff from the Security Risk Group Program at the time
the amended complaint was filed.
On August 16, 2016, the plaintiff experienced an emotional breakdown in his cell.
Lieutenant Perez responded to the housing unit and told the plaintiff that he would be seen by
mental health staff. The plaintiff was handcuffed and escorted to the restrictive housing unit.
Lieutenant Doughthery told the plaintiff that he would return to phase 3 and serve six more
months in restrictive housing.
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To protest the conditions of his confinement, the plaintiff covered his cell window.
Verbal intervention was used and, eventually, the plaintiff consented to be handcuffed.
Lieutenants Perez and Shweighoffer, and Captains Korch, Shabenas and Doughthery were
present when officials immediately upgraded the plaintiff to four-point restraints. Captain
Shabenas ordered both four-point soft restraints and hard metal restraints to be used. Lieutenant
Shweighoffer refused to permit the plaintiff to use the bathroom after he had been confined for
between three and four hours. Prisoners are supposed to be permitted a bathroom and range of
motion break after two hours.
After three hours, Lieutenant Shweighoffer and other staff refused to switch the plaintiff
to in-cell restraints to allow him to use the bathroom. Lieutenant Shweighoffer ordered staff to
cut off the plaintiff’s clothes and place him in a safety gown.
After the plaintiff had requested to use the bathroom more than ten times, Lieutenant
Shweighoffer offered him a urinal and bedpan, knowing that the plaintiff was chained to the bed
and use of these devices would be uncomfortable. The plaintiff refused.
Nurses Holly and Abby conducted fifteen-minute checks on the plaintiff during the first
and second shifts without problem. Between 7:00 p.m. and 8:00 p.m., Lieutenant Shweighoffer
and other staff came to conduct a range of motion check. By this time, the plaintiff had urinated
on his left leg and the floor next to the bed. Before the camera was turned on, the plaintiff
overheard Lieutenant Shweighoffer whisper to Correctional Officer Pearson that he was going to
permit the plaintiff to shower while handcuffed and shackled.
The officers escorted the plaintiff to the shower. When the plaintiff returned to his cell to
be placed in the four-point restraints, he noticed that the soft restraints closest to his face were
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soaked in urine. Lieutenant Shweighoffer stated that it was cleaning solution. The plaintiff was
returned to the four-point restraints.
On August 23, 2016, Dr. Coursen stopped at the plaintiff’s cell. The plaintiff asked to be
seen. Before Dr. Coursen could respond, Lieutenant Lipinsky told Dr. Coursen to leave the
plaintiff’s door. She did so. Lieutenant Lipinsky told the plaintiff that Dr. Coursen had been
ordered by the prison administration not to speak with the plaintiff.
II.

Analysis
The plaintiff asserts claims for excessive use of force against all defendants and failure to

prevent the harm. He alleges that the defendants conspired to violate his rights and caused him
to suffer pain, fear, anxiety, humiliation and emotional distress.
A.

Official Capacity Claims

The plaintiff has named all defendants in individual and official capacities. However, he
seeks only damages. The Eleventh Amendment divests the district court of subject matter
jurisdiction over claims for money damages against state officials acting in their official
capacities unless the state has waived this immunity or Congress has abrogated it. See Kentucky
v. Graham, 473 U.S. 159, 169 (1985). Section 1983 does not abrogate state sovereign immunity,
see Quern v. Jordan, 440 U.S. 332, 343 (1979), and the plaintiff has provided no evidence that
the State of Connecticut has waived immunity. Thus, any claims against the defendants in their
official capacities are dismissed pursuant to 28 U.S.C. § 1915A(b)(2).
B.

Use of Excessive Force

The use of excessive force against a prisoner can constitute cruel and unusual punishment
even where the inmate does not suffer serious injuries. See Hudson v. McMillian, 503 U.S. 1, 4
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(1992), accord Wilkins v. Gaddy, 559 U.S. 34, 34, 36 (2010) (per curiam). The "core judicial
inquiry" is "not whether a certain quantum of injury was sustained but rather whether force was
applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm." Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7 (internal quotation marks
omitted). There are objective and subjective components to the excessive force standard.
Hudson, 503 U.S. at 8. Objectively, the court must consider the level of force used against the
inmate and determine whether that force is repugnant to the conscience of mankind. Id. at 9-10.
Subjectively, the court must determine whether the defendants had a “wanton” state of mind
when applying the force. Id. at 8.
The extent of the inmate’s injuries is one factor the court may use to determine whether
the force could have been thought necessary by correctional staff or demonstrated an unjustified
infliction of harm. Id. at 7. Other factors the court may consider include “the need for
application of force, the relationship between that need and the amount of force used, the threat
reasonably perceived by the responsible officials, and any efforts made to temper the severity of
a forceful response.” Id. (internal quotation marks and citation omitted). Thus, even absent
significant injury, an inmate can establish an excessive force claim if he can show that the force
used was either more than de minimis or repugnant to the conscience of mankind, and that the
defendants acted with a sufficiently culpable state of mind. See United States v. Walsh, 194 F.3d
37, 48-50 (2d Cir. 1999).
The plaintiff alleges that he was confined in four-point restraints without cause. The
impetus of the defendants’ actions was one instance of covering his cell door window. The
plaintiff did not resist any orders or act out thereafter. In addition, the plaintiff alleges that the
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defendants acted maliciously while he was restrained by refusing to transfer him to in-cell
restraints to relieve himself and placing a urine-soaked restraint near his head. No defendant
interceded on the plaintiff’s behalf to prevent use of four-point restraints. The Court concludes
that the plaintiff states a plausible claim for use of excessive force and failure to intercede to stop
the use of excessive force.
III.

Conclusion
All claims against the defendants in their official capacities, are DISMISSED pursuant to

28 U.S.C. § 1915A(b)(2).
The Court enters the following orders:
(1)

The Clerk shall verify the current work addresses for each defendant with the

Department of Correction Office of Legal Affairs, mail a waiver of service of process request
packet containing the Amended Complaint to each defendant at the confirmed address within
twenty-one (21) days of this Order, and report to the court on the status of the waiver request on
the thirty-fifth (35) day after mailing. If any defendant fails to return the waiver request, the
Clerk shall make arrangements for in-person service by the U.S. Marshal Service on him or her
in individual capacity and the defendant shall be required to pay the costs of such service in
accordance with Federal Rule of Civil Procedure 4(d).
(2)

The Clerk shall send written notice to the plaintiff of the status of this action,

along with a copy of this Order.
(3)

The Clerk shall send a courtesy copy of the Amended Complaint and this Ruling

and Order to the Connecticut Attorney General and the Department of Correction Office of Legal
Affairs.
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(4)

The defendants shall file their response to the complaint, either an answer or

motion to dismiss, within sixty (60) days from the date the waiver forms are sent. If they choose
to file an answer, they shall admit or deny the allegations and respond to the cognizable claim
recited above. They also may include any and all additional defenses permitted by the Federal
Rules.
(5)

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.
(6)

All motions for summary judgment shall be filed within eight months (240 days)

from the date of this order.
(7)

Pursuant to Local Civil Rule 7(a), a nonmoving 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.
(8)

If the plaintiff changes his address at any time during the litigation of this case,

Local Court Rule 83.1(c)2 provides that the plaintiff MUST notify the court. Failure to do so
can result in the dismissal of the case. The plaintiff must give notice of a new address even if he
is incarcerated. The plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice.
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, he should indicate all of the case numbers in the
notification of change of address. The plaintiff should also notify the defendant or the attorney
for the defendant of his new address.

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(9)

The plaintiff shall utilize the Prisoner Efiling Program when filing documents

with the Court.
SO ORDERED this 23rd day of January 2017 at Hartford, Connecticut.
/s/
Michael P. Shea
United States District Judge

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