Wills v. Semple et al

Filing 11

INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. § 1915A. For the reasons set forth in the attached ruling, the complaint is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b)(1). As the case is dismissed, plaintiffs motion for appointment of counsel (Doc. # 3 ) is DENIED as moot. Signed by Judge Jeffrey A. Meyer on 10/18/2017. (Lombard, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MATTHEW WILLS,
Plaintiff,
No. 3:17-cv-881 (JAM)

v.
SCOTT SEMPLE, et al.,
Defendants.

INITIAL REVIEW ORDER
Plaintiff Matthew Wills is a prisoner in the custody of the Connecticut Department of
Correction. He has filed a complaint pro se and in forma pauperis under 42 U.S.C. § 1983. The
complaint was received on May 31, 2017, and plaintiff’s motion to proceed in forma pauperis
was granted on June 8, 2017. After an initial review, the Court concludes that the complaint
should be dismissed.
BACKGROUND
Plaintiff names six defendants: Commissioner Scott Semple, Warden Edward
Maldonado, Captain Chapdelaine, Lead CERT Officer Dowles, and two John Doe CERT
Officers. The following allegations from plaintiff’s complaint are accepted as true for purposes
of this ruling.
On February 23, 2017, plaintiff was housed in E-block at Osborn Correctional Institution.
At 10:00 p.m., multiple correctional officers ordered plaintiff to get dressed because all inmates
were going to the gym. As plaintiff left the housing unit, he observed multiple K-9 units with the
dogs acting aggressively and 150-200 Correctional Emergency Response Team (“CERT”)
officers in full riot gear holding assault weapons and batons. The officers were yelling threats
and obscenities at the inmates. The officers’ actions appeared to have been authorized by
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defendants Semple, Chapdelaine, and Dowles. When plaintiff reached the gym he experienced a
panic attack and chest pain. Doc. #1 at 5-6.
Plaintiff spoke with Warden Maldonado the following day. The warden stated that he did
not authorize the CERT teams to assemble and that inmates are not permitted to participate in a
live training exercise. As a result of the incident, plaintiff suffers from post-traumatic stress
disorder, panic attacks, and anxiety. Doc. #1 at 6.
DISCUSSION
Pursuant to 28 U.S.C. § 1915A(a), 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. The Court must accept as true all factual matters alleged in a complaint, although a
complaint may not survive unless its factual recitations state a claim to relief that is plausible on
its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770
F.3d 170, 177 (2d Cir. 2014) (same). Nevertheless, it is well-established that “pro se complaints
‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.’”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02
(2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
In recent years, the Supreme Court has set forth a threshold “plausibility” pleading
standard for courts to evaluate the adequacy of federal court complaints. A complaint must allege
enough facts—as distinct from legal conclusions—that give rise to plausible grounds for relief.
See, e.g., Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Notwithstanding the rule of liberal interpretation of a pro se complaint, a pro se complaint may

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not survive dismissal if its factual allegations do not meet the basic plausibility standard. See,
e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015).
Plaintiff does not identify any constitutionally protected right that was violated during
this incident. The Court considers possible claims for deliberate indifference to health and safety
and for threats or intimidation.
Plaintiff alleges that the CERT officers were making threatening and profane statements.
Verbal harassment or use of profanity, without an accompanying injury, “no matter how
inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of
a constitutional right and is not actionable under section 1983.” Little v. Municipal Corp., 51 F.
Supp. 3d 473, 500 (S.D.N.Y. 2014); see also Jean-Laurant v. Wilkerson, 438 F. Supp. 2d 318,
325 (S.D.N.Y. 2006) (verbal intimidation does not rise to the level of a constitutional violation);
Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995) (“Although indefensible and
unprofessional, verbal threats or abuse are not sufficient to state a constitutional violation
cognizable under § 1983.”). Plaintiff alleges that the officers, at most, made threatening
statements. He does not allege that any officer touched him. Thus, he fails to state a cognizable
constitutional claim.
Plaintiff’s allegations also can be construed as a claim for deliberate indifference to his
health or safety. To establish a constitutional violation, an inmate must show that the conditions
of his incarceration posed a substantial risk of serious harm and that prison officials were
deliberately indifferent to his safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Deliberate indifference exists if prison officials know of and disregard an excessive risk to
inmate health or safety. See id. at 837; Salahuddin v. Goord, 467 F.3d 263, 280-81 (2d Cir. 2006)
(defendants must have been actually aware of substantial risk that inmate would suffer serious

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harm as result of their actions or inactions); Bridgewater v. Taylor, 698 F. Supp. 2d 351, 358
(S.D.N.Y. 2010) (explaining that defendants must be aware of facts supporting an inference that
harm would occur and must actually draw that inference).
Plaintiff alleges that he suffered a panic attack during the incident and subsequently
developed anxiety and post-traumatic stress disorder. He alleges no facts, however, suggesting
that any defendant perceived any risk that he would have this reaction to the apparent training
exercise. Thus, he fails to state a cognizable claim for deliberate indifference to health or safety.
CONCLUSION
The complaint is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
As the case is dismissed, plaintiff’s motion for appointment of counsel (Doc. #3) is DENIED as
moot.
The Clerk of Court shall close this case.
It is so ordered.
Dated at New Haven this 18th day of October 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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