Torrez v. Semple et al

Filing 7

INITIAL REVIEW ORDER. Discovery due by 4/2/2018. Dispositive Motions due by 5/2/2018. Signed by Judge Stefan R. Underhill on 9/1/2017. (Schneider, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSE ANTHONY TORREZ,
Plaintiff,

No. 3:17-cv-01211 (SRU)

v.
SCOTT SEMPLE, et al.,
Defendants.
INITIAL REVIEW ORDER
Jose Anthony Torrez, currently confined at Northern Correctional Institution in Somers,
Connecticut, filed a complaint pro se under 42 U.S.C. § 1983 challenging his conditions of
confinement as a pretrial detainee and asserting a claim for failure to protect him from assault.
The defendants are Scott Semple, Allison Black, Kim Jones, Lieutenant Syed, and Correctional
Officers Victor Castillo, Anderson, and Pasquale Pisano. Torrez’s complaint was received on
July 20, 2017, and his motion to proceed in forma pauperis was granted on July 21, 2017.
Under section 1915A of Title 28 of the United States Code, I 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. 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. 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)); see also
Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010) (discussing special rules of solicitude
for pro se litigants).
I.

Allegations
At the time of the incident underlying this action, Torrez was a pretrial detainee confined

at Bridgeport Correctional Center. Torrez is classified as seriously mentally ill. He suffers from
bipolar disorder, depression, post-traumatic stress disorder, attention deficit disorder, attention
deficit hyperactivity disorder, and conduct disorder. He has taken mental health medication since
childhood. Torrez also has engaged in acts of mania and self-harm, and has suicidal ideations.
On February 17, 2016, Torrez was in the admitting and processing area of the Bridgeport
Correctional Center, waiting to go to court. He asked Officer Castillo for permission to use the
bathroom. On his way back, Torrez stopped in front of bull pen #5 to speak to his brother.
Officer Castillo saw Torrez speaking to another inmate. He yelled at Torrez, stated that he had
only given Torrez permission to use the bathroom, and ordered him immediately to go to lock
up.
Torrez did not understand the verbal abuse and experienced an episode of post-traumatic
stress disorder. Torrez told Officer Castillo that he had not seen his brother in five years and
wanted to see how he was doing. Officer Castillo aggressively walked toward Torrez and again
ordered him to go to lock up. As Torrez walked back to bull pen #2, Officer Castillo stepped in
front of Torrez, chest-to-chest. Torrez raised his hands to show that he did not want any
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problems, and asked Officer Castillo why he was in Torrez’s face. Officer Castillo then grabbed
Torrez by his sweater and punched him in the face. As Torrez stumbled back, Officer Anderson
lifted Torrez up and slammed him on the floor, inflicting lower back and hip pain. While Officer
Anderson applied handcuffs, Officer Castillo struck Torrez in the head a few times.
Officer Pisano called a code orange indicating that a correctional officer had been
assaulted. Torrez was placed in punitive segregation for allegedly assaulting Officer Castillo.
When he arrived at the restrictive housing unit, Lieutenant Syed ordered Torrez to undergo a
controlled strip search.
Two officers held Torrez bent over a bench in a humiliating manner. At least four other
officers watched while another officer removed all of Torrez’s clothes. Those actions
exacerbated Torrez’s post-traumatic stress disorder, which was caused by sexual abuse as a
child. Under Lieutenant Syed’s order, the officer conducted a digital search of Torrez’ anus.
Contrary to departmental policy, the search was not videotaped. Torrez was placed on in-cell
restraints for a day and a half. The cell had feces in the air vents.
Defendants Semple, Black, Jones, and Syed ordered Torrez transferred to Northern
Correctional Institution for placement on administrative segregation. They believed that Torrez
had assaulted Officer Castillo. They were aware that the conditions at Northern Correctional
Institution would exacerbate Torrez’s mental illness, limit his access to a law library, and affect
his mental state so he might be incompetent to stand trial.
Torrez asked defendants Semple, Black, Jones, and Syed to review the surveillance
footage in the admitting and processing room to see that, in fact, he was the one assaulted. They
told Torrez that there were no surveillance cameras in the room. Without camera footage, Torrez
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was unable to defend himself at the administrative segregation hearing, disciplinary hearing, and
criminal trial resulting from the incident.
While on administrative segregation, Torrez was subjected to solitary confinement and
extremely restrictive housing conditions. He was denied telephone access, visits, commissary,
CDs and a CD player, a television, a hand-held game boy unit, and other property which he used
(such as a copy machine). Whenever he left his cell, Torrez was fully restrained. He was allowed
one hour of out-of-cell recreation five times per week and three showers per week. He had to
recreate outdoors even during inclement weather, but was not provided adequate inclement
weather clothing. Torrez ate all meals in his cell.
II.

Analysis
Torrez asserts four claims: (1) all defendants were deliberately indifferent to his safety

and serious mental needs in violation of the Eighth and Fourteenth Amendments; (2) defendants
Semple, Black, Jones, and Syed violated his Fourteenth Amendment right to due process by
failing to transfer him to Garner Correctional Institution for mental health treatment instead of
administrative segregation; (3) defendants Semple, Black, and Jones created a policy under
which Torrez was deprived of adequate care and safety, and also failed to adequately supervise
and train their subordinates; and (4) all defendants violated his rights under the Americans with
Disabilities Act.
A. Eighth Amendment Claims
Torrez states that he brings his claims regarding excessive force, deliberate indifference
and conditions of confinement under the Eighth and Fourteenth Amendments. “A pretrial
detainee’s claims of unconstitutional conditions of confinement are governed by the Due Process
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Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of
the Eight Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Because Torrez
alleges that he was a pretrial detainee at all times relevant to his claim, he must assert his claims
under the Fourteenth Amendment. I dismiss all Eighth Amendment claims pursuant to 28 U.S.C.
§ 1915A(b)(1).
B. Fourteenth Amendment Claims
1. Excessive Force / Deliberate Indifference to Safety
A pretrial detainee asserting an excessive force claim “must show only that the force
purposely or knowingly used against him was objectively unreasonable.” Kingsley v.
Hendrickson, __ U.S.__, __, 135 S. Ct. 2466, 2473 (2015). Torrez alleges that he was walking
back to the bull pen in compliance with Officer Castillo’s order when Officer Castillo moved
immediately in front of Torrez. Although Torrez raised his hands to indicate he did not want any
trouble, Officer Castillo punched him. In addition, Officer Anderson also used force against him
and, instead of intervening to protect Torrez, Officer Pisano deliberately mischaracterized the
incident. Those allegations suffice to satisfy the requirement of Kingsley.
2. Deliberate Indifference / Conditions of Confinement
Torrez’s claims for deliberate indifference to serious mental health needs and for
unconstitutional conditions of confinement are based on his initial strip search and confinement
in restrictive housing, as well as his confinement on administrative segregation at Northern
Correctional Institution (where he was provided no mental health treatment and subjected to
conditions that exacerbated his mental health conditions, rather than being transferred to Garner
Correctional Institution where he could be provided proper mental health treatment).
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To state a claim for deliberate indifference to a serious mental health need, Torrez must
show both that his mental health need was “serious” and that the defendants acted 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, 104 (1976)). The deliberate indifference standard has
“both [] objective and subjective” components. 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)—that is, the condition must “produce death, degeneration, or extreme
pain.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). That standard applies under both
the Eighth and Fourteenth Amendments. Torrez’s mental disorders, as alleged, satisfy the
objective component.
For an unconstitutional conditions of confinement claim, Torrez must show that the
conditions under which he was confined constitute a “denial of the minimal civilized measures of
life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks
omitted). Torrez alleges that the defendants have denied him any mental health treatment and
that the conditions of confinement exacerbate his mental disorders. That deprivation is,
“objectively, ‘sufficiently serious’” to state a claim for unconstitutional conditions of
confinement. See id. (quoting Wilson, 501 U.S. at 298).
Under the Eighth Amendment, the subjective component for each claim requires that
defendants be “subjectively aware” that their actions create “a substantial risk [of] serious inmate
harm.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). The subjective standard differs,
however, for Fourteenth Amendment deliberate indifference and unconstitutional conditions of
confinement claims. The Second Circuit has applied Kinglsey—which expressly dealt with an
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excessive use of force claim—to claims of unconstitutional conditions of confinement by pretrial
detainees, and has indicated that Kingsley should be applied to all deliberate indifference claims
by pretrial detainees, as well. See Darnell, 849 F.3d at 35 (“A pretrial detainee may not be
punished at all under the Fourteenth Amendment, whether through the use of excessive force, by
deliberate indifference to the conditions of confinement, or otherwise.”). As the Second Circuit
determined, “the Due Process Clause can be violated when an official does not have subjective
awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a
substantial risk of harm.” Id. Accordingly, for a claim of deliberate indifference to mental health
needs or unconstitutional conditions of confinement under the Fourteenth Amendment, a pretrial
detainee can satisfy the subjective element by showing that the defendants “knew, or should have
known, that the condition posed an excessive risk to health or safety.” Id. At the same time,
negligent actions alone do not rise to the level of deliberate indifference and are not cognizable
under section 1983. See Kingsley, 135 S. Ct. at 2472 (“[L]iability for negligently inflicted harm
is categorically beneath the threshold of constitutional due process.”).
Torrez has alleged facts suggesting that defendants Semple, Black, Jones, and Syed were
aware of the conditions at Northern Correctional Institution and of his mental health needs, but
still had him transferred there. That allegation suffices, at the present stage of the litigation, to
state plausible claims for deliberate indifference to mental health needs and unconstitutional
conditions of confinement in violation of the Fourteenth Amendment.
C. Supervisory Liability
Torrez also includes a claim for supervisory liability against defendants Semple, Black,
and Jones for creating the policy under which mentally ill inmates are confined under restrictive
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conditions at Northern Correctional Institution and for failing to adequately train and supervise
their subordinates.
To state a claim for supervisory liability, Torrez must demonstrate that the defendants (1)
actually and directly participated in the alleged constitutional violation; (2) failed to remedy a
wrong after being informed of it though a report or appeal; (3) created or approved a policy or
custom that sanctioned objectionable conduct that rose to the level of a constitutional violation,
or permitted such a policy or custom to continue; (4) were grossly negligent in their supervision
of the officers who committed the constitutional violation; or (5) were deliberately indifferent to
the plaintiff’s rights by failing to act in response to information that unconstitutional acts were
occurring. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). In addition, Torrez must
demonstrate an “affirmative causal link” between the actions of the supervisory official and his
injuries. See Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).
Torrez alleges that defendants Semple, Black, and Jones were responsible for his transfer
and were aware that the conditions at Northern Correctional Institution would exacerbate his
mental health disorders. He also alleges that they ignored his complaints that he was falsely
accused, and that they did not properly train and supervise their subordinates to ensure that the
incident did not occur. Those allegations are sufficient, at the present stage of the litigation, to
state a plausible claim for supervisory liability.
D. Americans with Disabilities Act
Finally, Torrez asserts a claim under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, et seq. The purpose of the ADA is “to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals with disabilities.” Id.
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at § 12101(b)(1). The statute provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of services,
programs, or activities of a public entity, or be subjected to discrimination by such entity.” Id. at
§ 12132. The statute is intended “to ensure evenhanded treatment between the disabled and the
able-bodied.” Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).
The ADA defines “disability” as “a physical or mental impairment that substantially
limits one or more major life activities.” 42 U.S.C. § 12102(2)(A). “[I]n assessing whether a
plaintiff has a disability, courts have been careful to distinguish impairments which
merely affect major life activities from those that substantially limit those activities.” Ryan v.
Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998). For purposes of this Ruling, I assume
that Torrez’s mental disorders constitute a disability under the ADA.
To state a claim under the ADA, Torrez must also allege facts showing that he was
denied or excluded from a service, program or activity because of his disability. Torrez alleges
that he was treated the same as any other inmate accused of assaulting staff. His claim is that he
should have been treated differently because of his disability. Thus, Torrez fails to allege facts
satisfying the second requirement to state an ADA claim.
Moreover, the Second Circuit has held that “a private suit for money damages under Title
II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II
violation was motivated by either discriminatory animus or ill will due to disability.” Garcia v.
SUNY Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 111 (2d Cir. 2001). Torrez alleges that the
defendants acted as they did because they had been led to believe that he had assaulted Officer
Castillo. Thus, Torrez has alleged no facts demonstrating a discriminatory animus or ill will.
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III.

Conclusion
All Eighth Amendment and ADA claims are DISMISSED without prejudice pursuant to

28 U.S.C. § 1915A(b)(1). The case will proceed on the Fourteenth Amendment claims for use of
excessive force, deliberate indifference to safety, deliberate indifference to mental health needs
and unconstitutional conditions of confinement and the supervisory liability claims.
In accordance with the foregoing analysis, I enter the following orders:
(1)

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

Department of Correction Office of Legal Affairs, mail a waiver of service of process request
packets containing the Complaint to the defendants 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 in his 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 prepare a summons form and send an official capacity service

packet to the U.S. Marshal Service. The U.S. Marshal is directed to effect service of the
complaint on the defendants in their official capacities at the Office of the Attorney General, 55
Elm Street, Hartford, CT 06141, within twenty-one (21) days from the date of this order and to
file a return of service within thirty (30) days from the date of this order.
(3)

The Clerk shall send Torrez a copy of this Order.

(4)

The Clerk shall send a courtesy copy of the Complaint and this Order to the

Connecticut Attorney General and the Department of Correction Office of Legal Affairs.
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(5)

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, then they shall admit or deny the allegations and respond to the
cognizable claims recited above. They also may include any and all additional defenses
permitted by the Federal Rules.
(6)

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.
(7)

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

from the date of this order.
(8)

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.
(9)

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

Court Rule 83.1(c)2 provides that plaintiff MUST notify the court. Failure to do so can result
in the dismissal of the case. Torrez must give notice of a new address even if he is incarcerated.
Torrez 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 Torrez has more than
one pending case, he should indicate all of the case numbers in the notification of change of
address. Torrez should also notify the defendants or their attorneys of his new address.

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(10)

Torrez shall use the Prisoner Efiling Program when filing documents with the

court.

So ordered.
Dated at Bridgeport, Connecticut, this 1st day of September 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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