Lozada v. Palombo et al

Filing 10

INITIAL REVIEW ORDER. See attached memorandum. The Complaint is DISMISSED and the Clerk is directed to enter judgment for the Defendants and close this case. Signed by Judge Vanessa L. Bryant on 8/15/2017. (Hoffman, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

REYMUNDO LOZADA,
Plaintiff,
v.
COUNSELOR PALOMBO, ET AL.,
Defendants.

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Case No. 3:16cv1760(VLB)

RULING AND ORDER
The plaintiff, Reymundo Lozada, is currently confined at Garner
Correctional Institution in Newtown, Connecticut. He has filed a complaint
pursuant to 42 U.S.C. § 1983 naming Counselor Palombo and Jane/John Doe
Medical Staff as defendants. Pending is the plaintiff’s complaint and motion to
consolidate. For the reasons set forth below, the complaint will be dismissed and
the pending motion will be denied.
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. 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).

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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 interpret “a pro se complaint liberally,” the complaint must
include sufficient factual allegations to meet the standard of facial plausibility.
See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).
The plaintiff’s complaint includes no facts. Instead, the plaintiff refers the
court to exhibits attached to the complaint. The exhibits reflect that on June 29,
2016, Counselor Palombo ordered the plaintiff to move from the bottom bunk to
the top bunk despite the fact that the plaintiff claimed that he had been issued a
bottom bunk pass. Counselor Palombo checked with the medical department
and Jane/John Doe Medical Staff informed Counselor Palombo that the plaintiff
did not have a pass.
On July 4, 2016, the plaintiff attempted to get up to the top bunk using a
chair and a ladder, but the ladder and chair slipped and caused the plaintiff to fall
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onto the desk and then to the floor of the cell. The plaintiff suffered a gash to his
back that was several inches long and deep and a bruise to his foot. Medical
staff treated him for his injuries.
On July 20, 2016, the plaintiff submitted an Inmate Request Form to
Counselor Palombo requesting the name of the person who had authorized him
to make the decision not to honor the bottom bunk pass. The request was
forwarded to Captain McDaniel. On August 2, 2016, Captain McDaniel indicated
that he had further reviewed the matter with N/S Miller and Miller confirmed that
the plaintiff did have a bottom bunk pass on the date in question. The bottom
bunk pass was to expire on August 10, 2016.
The plaintiff claims that he suffered pain as a “direct result of the negligent
and flagrant dis-regard of both D.O.C. and especially medical policy. Thereby
inflicting both physical and emotional injuries.” Compl., ECF No. 1 at 6. For
relief, the plaintiff seeks monetary damages.
I.

Official Capacity Claims
To the extent that the plaintiff seeks damages against the defendants in

their official capacities, the claims are barred by the Eleventh Amendment. See
Kentucky v. Graham, 473 U.S. 159, 167 (1985); Quern v. Jordan, 440 U.S. 332, 342
(1979). All such claims are dismissed pursuant to 28 U.S.C. § 1915A(b)(2).
II.

Individual Capacity Claims
To state an Eighth Amendment conditions of confinement claim, an inmate

must establish first, that a prison official denied him “the minimal civilized
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measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(internal citations and quotation marks omitted). Second, the inmate must show
that the official acted with subjective “deliberate indifference to [his] health or
safety” because the official knew that he “face[d] a substantial risk of serious
harm and disregard[ed] that risk by failing to take reasonable measures to abate
it.” Id. at 834, 847 (internal citations and quotation marks omitted).
There are no facts to suggest that either defendant deliberately or
intentionally disregarded a risk to the plaintiff’s health or safety. In fact, the
plaintiff describes the conduct of Counselor Palombo in failing to believe that he
had been issued a bottom bunk pass as well as the conduct of the unnamed
medical staff member who allegedly confirmed Counselor Palombo’s belief, as
negligent.
Inadvertent or negligent conduct which causes injury does not support a
section 1983 action. See Farmer, 511 U.S. at 835 (“deliberate indifference
requires more than mere negligence”); Whitley v. Albers, 475 U.S. 312, 319
(1986)(“conduct that does not purport to be punishment at all must involve more
than ordinary lack of due care for the prisoner’s interests or safety.”); Daniels v.
Williams, 474 U.S. 327, 330-36 (1986) (due process protections not triggered by
lack of due care by state officials); Trammell v. Keane, 338 F.3d 155, 165 (2d Cir.
2003) (“Negligence does not, however, satisfy the scienter requirement necessary
to support a claim for cruel and unusual punishment”) (internal quotation marks
and citation omitted). Thus, plaintiff’s claim that the defendants’ conduct
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constituted a lack of due care or negligence does not state a plausible Eighth
Amendment claim of deliberate indifference to his health or safety. All claims
against the defendants are dismissed as lacking an arguable legal basis. See 28
U.S.C. § 1915A(b)(1).
ORDERS
The court enters the following orders:
(1)

The Complaint, [ECF No. 1], is DISMISSED pursuant to 28 U.S.C. §

1915A(b)(1). The court declines to exercise supplemental jurisdiction over any
state law claims against the defendants. See United Mine Workers v. Gibbs, 383
U.S. 715, 715-26 (1966) (holding that, where all federal claims have been
dismissed before trial, pendent state claims should be dismissed without
prejudice and left for resolution by the state courts).
(2)

The Clerk is directed to enter judgment for the defendants and close

this case.
SO ORDERED at Hartford, Connecticut this 15th day of August, 2016.

/s/
______________________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE

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