Jose v. McLeod et al

Filing 7

INITIAL REVIEW ORDER: As set forth in the Initial Review Order attached, Plaintiff's Complaint is dismissed in part. As stated in the Order, Plaintiff must file a notice indicating the first and last names of John Doe Defendants for non-dismis sed claims within 90 days of the date of this Order, by 10/9/2017. The U.S. Marshals Service and Clerk are directed to pages 11-14 of the Order for deadlines to serve Defendants. Defendants shall respond to the Complaint within 60 day s of the date the notice of lawsuit and waiver of service of summons forms are mailed to them. Discovery shall be completed by 1/8/2018 and Dispositive Motions, if any, are due by 2/6/2018. Signed by Judge Vanessa L. Bryant on 7/11/2017. (Hudson, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSE CORREA,
Plaintiff,
v.
McLEOD, et al.
Defendants.

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No. 3:17cv1059 (VLB)

July 11, 2017

INITIAL REVIEW ORDER
On June 29, 2017, the Plaintiff, Jose Correa, an inmate currently
confined at MacDougall-Walker Correctional Institution in Suffield,
Connecticut, filed a complaint pursuant to 42 U.S.C. § 1983 against
Correction Officer McLeod, Lieutenant Lindsey, Correction Officer Ortyl,
Correction Officer Heinberg, Correction Officer Weir, Correction Officer
Daigle, Correction Officer Pinar, Correction Officer Beaulier, Correction
Officer Cassidy, Correction Officer Boudreau, Correction Officer
Carasquillo, Administrator Cournoyer,1 Deputy Warden Mulligan,
Lieutenant Perylo, and Dr. Wright. The Plaintiff is suing each defendant in
his or her individual and official capacities for violations of his Fourth,
Fifth, Eighth, and Fourteenth Amendment rights. He is seeking declaratory,
injunctive, and monetary relief. For the reasons that follow, his complaint
will be dismissed in part.

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The ECF docketing system lists this defendant as “Courneyer.”
Upon information and belief, the correct spelling of this defendant’s last
name is “Cournoyer.”

I.

Factual Allegations
On February 27, 2016, at approximately 4:00 p.m., the Plaintiff was in

the 3-East day room at Northern for recreation, when correctional officers
searched through his cell and “wreck[ed]” his legal papers. Frustrated, the
plaintiff threw a plastic container at Correction Officer McLeod, hitting him
on the left side of his face. The Plaintiff immediately lied face-down on the
ground in submission. Nevertheless, Correction Officer John Doe
proceeded to punch and kick the Plaintiff in the ribs. The Plaintiff was then
placed in restraints, and multiple John Doe officers continuously beat the
plaintiff and “bang[ed]” his head against the concrete floor. Lieutenants
Lindsey and Guimond then sprayed a chemical agent in the Plaintiff’s face.
Afterward, the Plaintiff was denied a shower to wash off the chemical
agent, and was also denied medical care and food. Officers also continued
to harass him.
At 4:45 p.m., Officer Boudreau “called in a false code,” claiming that
the Plaintiff was attempting to damage his restraints, which prompted
Lieutenant Perylo to deploy another chemical agent on the Plaintiff and call
him names. Once again, the Plaintiff was denied a shower to wash off the
agent and was continuously harassed.
The Plaintiff wrote multiple inmate request forms and grievances
seeking medical attention, but no one responded. The Plaintiff later
learned that the correctional officers at Northern were reading his legal

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mail and telling other inmates his charges, which the Plaintiff believed put
him in danger.
II. Standard of Law
Pursuant to 28 U.S.C. § 1915A, this 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. 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 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.” Bell Atlantic, 550 U.S. at 570. Nevertheless, it is
well-established that “[p]ro 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)).
III.

Analysis
The Plaintiff claims that the officers and staff at Northern violated his

Fourth Amendment rights by unlawfully searching his cell, reading his
mail, and using excessive force against him, violated his Eighth
Amendment right against cruel and unusual punishment by acting with

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deliberate indifference to his safety and medical needs and failing to
protect him from harm, violated his Fifth Amendment rights, and unlawfully
discriminating against him on the basis of his race.
A.

Personal Involvement

“It is well settled . . . that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)
(internal quotation marks omitted); see also Johnson v. Glick, 481 F.2d
1028, 1034 (2d Cir. 1973) (doctrine of respondeat superior does not suffice
for claim of monetary damages under § 1983). A plaintiff who sues a
supervisory official for monetary damages must allege that the official was
“personally involved” in the constitutional deprivation in one of four ways:
(1) the official directly participated in the deprivation; (2) the official learned
about the deprivation through a report or appeal and failed to remedy the
wrong; (3) the official created or perpetuated a policy or custom under
which unconstitutional practices occurred; or (4) the official was grossly
negligent in managing subordinates who caused the unlawful condition or
event. Wright, 21 F.3d at 501; Hernandez v. Keane, 341 F.3d 137, 145 (2d
Cir. 2003). In addition, the plaintiff must allege a causal link between the
conduct of the supervisory official, or lack thereof, and the injury. See Poe
v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).
The only Defendants mentioned in the Plaintiff’s statement of facts
are Lieutenant Perylo, Lieutenant Guimond, Lieutenant Lindsey, Correction

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Officer McLeod, Correction Officer Boudreau, and several unnamed
correction officers identified only as John Does. Thus, aside from these
individuals, all claims against Defendants listed in this action are
DISMISSED for lack of personal involvement.
Moreover, the Plaintiff does not explain how Officer McLeod was
involved in the attack or denial of care thereafter. He only alleges that
McLeod was hit in the face by the plastic container thrown by the Plaintiff.
Therefore, the claims against Officer McLeod are also DISMISSED.
B.

Claims Against Defendants in their Official Capacities

To the extent that the Plaintiff seeks money damages from the
Defendants in their official capacities, those claims are barred by the
Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159 (1985); Quern
v. Jordan, 440 U.S. 332, 342 (1979). All such claims are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(2).
C.

Fourth Amendment Claims

The Plaintiff claims that the Defendants violated his Fourth
Amendment rights in three ways: (1) searching his cell; (2) reading his
mail; and (3) using excessive force against him. A prisoner has no
reasonable expectation of privacy in his prison cell. Hudson v. Palmer, 468
U.S. 517, 525-26 (1984); Smith v. Woods, 219 F. App’x 110, 111 (2d Cir.
2007). The interception of a prisoner’s mail does not violate the Fourth
Amendment where the officer(s) had “good” or “reasonable” cause to
inspect it. United States v. Felipe, 148 F.3d 101, 108 (2d Cir. 1998).

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Moreover, the Plaintiff has not specified which, if any, of the Defendants
were involved in the interception of his mail. Therefore, his first two Fourth
Amendment claims are DISMISSED for failure to state a claim.
The Fourth Amendment’s protection against unreasonable seizures
prohibits the use of excessive force by police officers in arresting
suspects. Hemphill v. Schott, 141 F.3d 412, 416-17 (2d Cir. 1998). To
establish a Fourth Amendment excessive force claim, the Plaintiff must
show that the force used by the officer was “objectively unreasonable.”
Graham v. Connor, 490 U.S. 386, 397 (1989). The “reasonableness” of a
particular use of force must be judged from the perspective of a reasonable
police officer on the scene (id. at 396) and “requires consideration of the
severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether the suspect is
actively resisting arrest or attempting to evade arrest by flight.” Hemphill,
141 F.3d at 417.
With respect to his third Fourth Amendment claim, the Plaintiff
alleges that Lieutenant Lindsey, Lieutenant Guimond, Lieutenant Perylo,
Officer Boudreau, and several John Doe corrections officers used
excessive force on him after he threw a plastic container at Officer McLeod
by physically assaulting him and spraying him with chemical agents
despite his submission to their authority. Based on these allegations, the
Plaintiff has stated a plausible excessive force claim against those
Defendants. Thus, the Court will permit his Fourth Amendment claim to

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proceed against Lindsey, Guimond, Perylo, Boudreau, and the John Doe
officers.
D.

Fifth Amendment Claims

The Plaintiff claims that the defendants violated his Fifth Amendment
rights but does not explain which specific right was violated or how, if at
all, the Defendants violated that right. Therefore, his Fifth Amendment
claim is DISMISSED for failure to state a claim.
E.

Eighth Amendment Claims

The Plaintiff claims that the Defendants violated his Eighth
Amendment protection against cruel and unusual punishment by acting
with deliberate indifference to his safety and medical needs and failing to
protect him from harm.
The Eighth Amendment requires prison officials to “take reasonable
measures to guarantee the safety of . . . inmates.” Hudson, 468 U.S. at 52627. To state a claim for deliberate indifference to safety or failure to protect
from harm, the plaintiff must show that the alleged conduct is sufficiently
serious and that the defendants acted with a sufficiently culpable state of
mind, that is, that they acted maliciously and sadistically to cause harm.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Matthews v. Armitage, 36
F. Supp. 2d 121, 124 (N.D.N.Y. 1999). The defendants must have been
aware that the plaintiff faced an excessive risk to his health and safety and
ignored that risk. See Farmer, 511 U.S. at 837. To determine whether the
plaintiff faced an excessive risk of serious harm, the courts “look at the

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facts and circumstances of which the official was aware at the time he
acted or failed to act.” Hartry v. Suffolk, 755 F. Supp. 2d 422, 436 (E.D.N.Y.
2010) (internal quotation marks and citation omitted).
“An inmate must rely on prison authorities to treat his medical
needs; if the authorities fail to do so, those needs will not be met.” West v.
Atkins, 487 U.S. 42, 54 (1988) (citing Estelle v. Gamble, 429 U.S. 97, 103
(1976)). “[T]he State has a constitutional obligation, under the Eighth
Amendment, to those whom it has incarcerated.” West, 487 U.S. at 54. To
state a claim for deliberate indifference to a serious medical need, an
inmate must show both that his medical need was serious and that the
defendants acted or failed to provide adequate medical care with a
sufficiently culpable state of mind. See Smith v. Carpenter, 316 F.3d 178,
184 (2d Cir. 2003) (citing Estelle v. Gamble, 492 U.S. 97, 105 (1976)). There
are both objective and subjective components to the deliberate indifference
standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Objectively, the alleged deprivation must be “sufficiently serious.” Wilson
v. Seiter, 501 U.S. 294, 298 (1991). The condition must be “one that may
produce death, degeneration, or extreme pain.” See Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks omitted).
Subjectively, the defendants must have been actually aware of a
substantial risk that the inmate would suffer serious harm as a result of his
actions or inactions. See Salahuddin v. Goord, 467 F.3d 263, 280–81 (2d
Cir. 2006). Negligence that would support a claim for medical malpractice

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does not rise to the level of deliberate indifference and is not cognizable
under Section 1983 (see id. at 280) nor does a difference of opinion
regarding what constitutes an appropriate response and treatment. See
Ventura v. Sinha, 379 F. App’x 1, 2–3 (2d Cir. 2010); Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998).
The Plaintiff's allegations that he was assaulted and sprayed with a
chemical agent while he was submissive and not resisting the Defendant's
authority state plausible Eighth Amendment claims against the remaining
Defendants for deliberate indifference to his safety. Thus, his Eighth
Amendment claims will proceed against defendants Lindsey, Guimond,
Perylo, Boudreau, and the John Doe corrections officers.
The Plaintiff has not alleged which prison officials denied his
repeated requests for showers to wash off the chemical agents, medical
care and food. Thus, he has failed to state a claim for deliberate
indifference based on the denial of those requests. Plaintiff's deliberate
indifference to medical needs claim is DISMISSED for failure to allege
sufficient personal involvement.
F.

Fourteenth Amendment Claims

The Plaintiff claims the Defendants violated his Fourteenth
Amendment rights but does not explain which specific right was violated or
how, if at all, the Defendants violated that right. He that the Defendants
discriminated against him on the basis of his race but does not support

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that claim with any facts. Therefore, the Plaintiff’s Fourteenth Amendment
claim is DISMISSED for failure to state a claim.
G.

Request for Declaratory Relief

Declaratory relief is a vehicle for resolving the relative legal rights of
parties to an actual controversy. “The Declaratory Judgment Act of 1934,
now 28 U.S.C. § 2201, 28 U.S.C.A. §2201, styled ‘creation of a remedy,’
provides that in a case of actual controversy a competent court may
declare the rights and other legal relations of a party whether or not further
relief is, or could be, sought. This is an enabling Act, which confers a
discretion on the courts rather than an absolute right upon the litigant.”
Public Service Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 239 (1952)
(internal quotations omitted). It serves to “settle legal rights and remove
uncertainty and insecurity from legal relationships without awaiting a
violation of that right or a disturbance of the relationship.” Colabella v.
American Institute of Certified Public Accountants, 10 Civ. 2291, 2011 WL
4532132, at *22 (E.D.N.Y. Sep. 28, 2011) (citations omitted). Declaratory
relief operates prospectively to enable parties to adjudicate claims before
either side suffers great damages. See In re Combustion Equip. Assoc.,
Inc., 838 F.3d 35, 37 (2d Cir. 1988).
The plaintiff's legal rights, outlined above, are clear and well
established. The questions presented here are not whether the plaintiff has
certain rights, but rather whether those rights have been denied. Thus the
plaintiff asks the court to apply the facts of this case to the law and not to

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determine the legal rights of the parties, and declaratory judgment is
inappropriate.
Relatedly, Plaintiff’s request for declaratory relief concerns only past
actions. He has not identified any legal relationships or issues that require
resolution by declaratory relief. See Ward v. Thomas, 207 F.3d 114, 119-20
(2d Cir. 2000) (holding that Eleventh Amendment bars declaration that State
of Connecticut violated federal law in the past); Camofi Master LDC v.
College P’ship, Inc., 452 F. Supp. 2d 462, 480 (S.D.N.Y. 2006 ) (concluding
that claim for declaratory relief that is duplicative of adjudicative claim
underlying action serves no purpose).
Finally, declaratory judgment is a special proceeding which is
available where other remedies do not exist. “A declaration may not be
rendered if a special statutory proceeding has been provided for the
adjudication of some special type of case. Public Service Comm’n of Utah,
344 U.S. at 243 (discussing commentary to Fed. R. Civ. P. 57). In this case,
42 U.S.C. 1983 affords a remedy and thus a declaratory judgment is not
authorized by statute. For the foregoing reasons, the request for
declaratory relief is DISMISSED.
ORDERS
(1) All claims against Defendants McLeod, Ortyl, Heinberg, Weir,
Daigle, Pinar, Carrasquillo, Beaulier, Cassidy, Cournoyer, Mulligan, Perylo,
and Wright are DISMISSED. All claims against Defendants in their official
capacities for monetary damages are DISMISSED.

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(2) Because the Plaintiff has not identified the John Doe correction
officers by their true names, the Clerk is not able to serve a copy of the
complaint on those Defendants in their individual capacities. The Plaintiff
must, within ninety (90) days of the date of this order, conduct discovery
and file a notice indicating the first and last name of those Defendants. If
the Plaintiff files the notice, the Court will direct the Clerk to effect service
of the complaint on those Defendants in their individual capacities. If the
Plaintiff fails to identify those Defendants within the time specified, the
claims against them will be dismissed pursuant to Fed. R. Civ. P. 4(m).
(3) The Plaintiff’s Fourth Amendment excessive force claim may
proceed against defendants Lindsey, Guimond, Perylo, Boudreau, and any
John Doe officers properly and timely identified.
(4) The Plaintiff’s Fifth Amendment claim is DIMISSED.
(5) The Plaintiff’s Eighth Amendment claim for deliberate indifference
to safety and/or failure to protect will proceed against Defendants Lindsey,
Guimond, Perylo, Boudreau, and those John Doe officers properly and
timely identified.
(6) The Plaintiff’s Fourteenth Amendment claim is DISMISSED.
(7) The Plaintiff’s request for declaratory relief is DISMISSED.
(8) Within twenty-one (21) days of this Order, the U.S. Marshals
Service shall serve the summons, a copy of the complaint and this order on
Defendants Lindsey, Guimond, Perylo, Boudreau, and the John Doe
officers in their official capacities by delivering one copy of the necessary

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documents in person to the Office of the Attorney General, 55 Elm Street,
Hartford, CT 06141.
(9) The Clerk shall verify the current work addresses for Defendants
Lindsey, Guimond, Perylo, and Boudreau with the Department of
Correction Office of Legal Affairs, mail a waiver of service of process
request packet containing the 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. Marshals
Service on him or her, and the Defendant shall be required to pay the costs
of such service in accordance with Fed. R. Civ. P. 4(d).
(10)

The Defendants shall file their response to the complaint,

either an answer or motion to dismiss, within sixty (60) days from the date
the notice of lawsuit and waiver of service of summons forms are mailed to
them. If they 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.
(11)

Discovery, pursuant to Fed. R. Civ. P. 26-37, shall be

completed within six months (180 days) from the date of this order.
Discovery requests need not be filed with the court.
(12)

All motions for summary judgment shall be filed within seven

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months (210 days) from the date of this order.
SO ORDERED this 11th day of July, 2017 at Hartford, Connecticut.

______/s/__________________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE

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