Shand v. Chapalaine et al

Filing 8

INITIAL REVIEW ORDER: All claims against Chapdelaine, Hines, and Guadarrama are dismissed. Shands Fifth and Fourteenth Amendment claims are dismissed. Shands Eighth Amendment claims for excessive force and deliberate indifference to medical needs an d state law assault and battery claims may proceed against Rivera, Raines, Mancini, and Does 14 in their individual capacities for damages. The Clerk shall verify the current work addresses for Rivera, Raines, and Mancini with the Department of Corre ction 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 reque st on the thirty-fifth (35) day after mailing. If a 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, and the defendant shall be required to pay the costs of such service in accordance with Fed. R. Civ. P. 4(d). Because Shand has not identified John Does 14 by name, the Clerk is not able to serve a copy of the Complaint on those defendants in their individual capacities. Shand 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 four defendants. If Shand files the notice, the court will direct the Clerk to effect service of the Complaint on those defendants in the ir individual capacities. If Shand fails to identify those defendants within the time specified, his claim against them will be dismissed pursuant to Fed. R. Civ. P. 4(m). Rivera, Raines, Mancini, and Does 14 (if identified) 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. Discovery due by 7/3/2018 Dispositive Motions due by 8/3/2018 Signed by Judge Janet C. Hall on 1/2/2018.(Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHRISTOPHER SHAND
Plaintiff,
v.
WARDEN CHAPDELAINE, et al.
Defendants.

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PRISONER CASE NO.
3:17-cv-1947 (JCH)

JANUARY 2, 2018

INITIAL REVIEW ORDER
On November 27, 2017, the plaintiff, Christopher Shand (“Shand”), an inmate
currently housed at MacDougall-Walker Correctional Institution (“MWCI”) in Suffield,
Connecticut, filed a complaint pro se pursuant to title 42, section 1983 of the United
States Code against Warden Chapdelaine, Deputy Warden Hines, Deputy Warden
Guadarrama, Captain Rivera, Correction Officer Mancini, Correction Officer Raines, and
four other unidentified correction officers1 at MWCI in their individual capacities for
monetary relief. Complaint (Doc. No. 1). On November 30, 2017, this Court granted
Shand’s Motion to Proceed in forma pauperis (Doc. No. 2). See Order (Doc. No. 6).
For the following reasons, his Complaint is dismissed in part.
I.

STANDARD OF REVIEW
Pursuant to title 28, section 1915A of the United States Code, 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

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The Court’s docket report originally listed fourteen John Doe defendants. This was a clerical
error, as the Complaint clearly lists four John Doe defendants. The Clerk has since corrected that error.

monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
§ 1915A. Although detailed allegations are not required, the complaint must include
sufficient facts to afford the defendant 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)).
II.

FACTS2
On January 25, 2015, Captain Rivera assembled a “cell extraction team” after

Shand’s cellmate refused to take down a sheet covering the cell window. Compl. at ¶
18. Shand had nothing to do with his cellmate’s decision to cover the window. Id. at ¶
24. The “cell extraction team” included Rivera and correction officers Mancini, Raines,
and John Does 1–4. Id. at ¶ 19. Upon opening the cell, the team members immediately
attacked Shand. Id. Raines and Mancini punched Shand several times in the head,
causing his left ear drum to burst and permanently damaging his hearing. Id. at ¶¶ 19–

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For the purposes of an Initial Review Order, the court accepts all factual allegations as true and
draws all reasonable inferences in the plaintiff’s favor. See Williams v. Correction Officer Priatno, 829
F.3d 118, 122 (2d Cir. 2016).

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20. John Does 2–4 also participated in beating Shand. Id. at ¶ 21. The officers yelled
at Shand to “stop resisting!,” despite the fact that Shand was not resisting, but was
rather lying prone on the floor of the cell. Id. at ¶¶ 22–23.
While the other team members were beating Shand, Rivera sprayed him with a
chemical agent causing Shand to experience pain in his eyes and lungs and difficulty
breathing. Compl. ¶ 10. John Doe 1 stood by and permitted Rivera to spray Shand
even though both Doe 1 and Rivera knew that Shand suffered from asthma. Id. at ¶¶
11–12. After using the pepper spray, Rivera ordered that Shand be placed in in-cell
body restraints––including handcuffs, leg irons, and a tether chain connecting his hands
to his legs––for three days. Id. at ¶¶ 14–16. All members of the “extraction team”
denied Shand any medical care for his damaged ear after he was beaten. Id. at ¶ 25.
III.

ANALYSIS
Shand is suing Rivera, Raines, Mancini, and John Does 1–4 for using excessive

force, placing him in in-cell restraints, and denying him medical care, in violation of his
Fifth, Eighth, and Fourteenth Amendment rights. Compl. at ¶¶ 30–34, 39–42, 46–47.
He is also raising state law claims of assault and battery against those defendants. Id.
at ¶¶ 36-38.3 Shand is suing Chapdelaine, Hines, and Guadarrama for failing to train
and failing to supervise correctional officers at MacDougall-Walker Correctional
Institution, based on the actions of Rivera, Raines, Mancini, and John Does 1–4. Id. at
¶¶ 43–45.

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In the introduction to his Complaint, Shand also makes reference to a state law claim of intentional
infliction of emotional distress. See Compl. at ¶ 1. However, none of the numbered counts in the Complaint raise
intentional infliction of emotional distress. The court therefore concludes that this reference was made in error.

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A.

Fifth Amendment Claims

The Fifth Amendment applies to the federal government, not to the states. See
Dusenbery v. United States, 534 U.S. 161, 167 (2002) (Fifth Amendment due process
applies to federal government actors whereas Fourteenth Amendment due process
applies to state actors); Ambrose v. City of New York, 623 F. Supp.2d 454, 466–67
(S.D.N.Y. 2009) (due process claim against city properly brought under Fourteenth
Amendment, not Fifth Amendment). Shand has not raised any claim against a federal
government actor. Therefore, his Fifth Amendment claims are dismissed.
B.

Eighth Amendment Claims Against Rivera, Raines, Mancini, and Does 1-4
1.

Excessive Force

To establish a claim of excessive force under the Eighth Amendment, the
prisoner must satisfy a subjective and objective component. See Sims v. Artuz, 230
F.3d 14, 20–21 (2d Cir. 2000).
The subjective component of the excessive force standard requires a showing
that an officer’s use of excessive force was “carried out ‘maliciously and sadistically’
rather than as part of ‘a good faith effort to maintain or restore discipline.’” Wilkins v.
Gaddy, 559 U.S. 34, 40 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
The objective component focuses on the harm done in light of contemporary standards
of decency, but the amount of harm that must be shown depends on the nature of the
claim. See Sims, 230 F.3d at 21; Banks v. Cty. of Westchester, 168 F. Supp.3d 682,
688 (S.D.N.Y. 2016). Some degree of injury is ordinarily required. See Banks, 168 F.
Supp. 3d at 688. However, a prisoner does not have to show that he sustained a
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significant injury in order to prevail on an excessive force claim. “[T]he use of excessive
physical force against a prisoner may constitute cruel and unusual punishment [even]
when the inmate does not suffer serious injury.” Wilkins v. Gaddy, 559 U.S. 34, 34
(2010) (quoting Hudson, 503 US. at 4). On the other hand, “not ‘every malevolent touch
by a prison guard gives rise to a federal cause of action.’” Id. at 37 (quoting Hudson,
503 U.S. at 9); see also Sims, 230 F.3d at 22 (not every push or shove violates
prisoner’s constitutional rights).
In sum, a prisoner sufficiently states an Eighth Amendment claim if he “alleges
facts from which it could be inferred that prison officials subjected him to excessive
force, and did so maliciously and sadistically.” Sims, 230 F.3d at 22.
Shand claims that Rivera, Raines, Mancini, and Does 1–4 violated his Eighth
Amendment protection against cruel and unusual punishment by using excessive force
following his cellmate’s refusal to remove the window covering. Compl. ¶¶ 30–35. He
alleges that these defendants physically assaulted him in his cell, damaging his eardum,
and further sprayed him with a chemical agent without justification. Id. at ¶¶ 10–13, 18–
21. These allegations state a plausible claim of excessive force under the Eighth
Amendment.
2.

Deliberate Indifference to Medical Needs

Shand also claims that Rivera, Raines, Mancini, and Does 1-4 acted with
deliberate indifference to his serious medical needs by denying him any form of medical
care after the alleged assault. Deliberate indifference to serious medical needs occurs
when an official knows that an inmate faces a substantial risk of serious harm and
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disregards that risk by failing to take reasonable measures to abate it. Harrison v.
Barkley, 219 F.3d 132, 137–38 (2d Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825,
837 (1994)). In order to state a deliberate indifference claim, Shand must allege both
that his medical 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, 105 (1976)). 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
Shand would suffer serious harm as a result of their conduct. See Salahuddin v. Goord,
467 F.3d 263, 280–81 (2d Cir. 2006).
Shand alleges that his eardrum was damaged, causing permanent damages to
his hearing in one ear, and that the chemical agent caused acute pain and difficulty
breathing because he has asthma. Compl. at ¶¶ 10–12, 20, 25–27. He further alleges
that Rivera, Raines, Mancini, and Does 1–4 knew or should have known of his asthma.
Although borderline conclusory, Shand’s allegation that Rivera, Raines, Mancini, and
Does 1–4 denied him medical care following the assault is sufficient at this early stage
to state a claim for deliberate indifference to medical needs. See White v. Clark, 12 Civ.
986 (NAM/RFT), 2012 WL 5877160, *7 (N.D.N.Y. Nov. 20, 2012) (permitting medical
indifference claim to proceed based on allegation that defendants denied him medical
care following assault by correction officers). Therefore, Shand’s Eighth Amendment
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claims for deliberate indifference to serious medical needs will proceed against Rivera,
Raines, Mancini, and Does 1–4.
C.

Fourteenth Amendment Claims

To the extent Shand is suing Rivera, Raines, Mancini, and Does 1–4 for violating
his right to due process under the Fourteenth Amendment based on the same
allegations in support of his Eighth Amendment claims, the Fourteenth Amendment
claim is dismissed as duplicative. See Graham v. Connor, 490 U.S. 386, 395 (1989)
(generalized notion of substantive due process under Fourteenth Amendment not
applicable where other amendment provides explicit textual source of constitutional
protection against alleged government conduct). He also claims, however, that those
same defendants violated his Fourteenth Amendment right to procedural due process
by placing him in body restraints for three days following the assault.
To demonstrate a procedural due process violation, Shand must show that the
defendants encroached upon a protected liberty interest. In Wolff v. McDonnell, 418
U.S. 539 (1974), the Supreme Court held that due process requires procedural
protections before a prisoner could be deprived of a protected liberty interest. In finding
a protected liberty interest in Wolff, the Court noted that the right at issue, good time
credit, was statutorily provided by the State of Nebraska. In Sandin v. Conner, 515 U.S.
472, 484–85 (1995), the Court rejected the plaintiff’s argument that prison discipline
“encroaches upon a liberty interest under the Due Process Clause even in the absence
of any state regulation [creating a liberty interest].” Thus, a plaintiff “has a protected
liberty interest only (1) if the state has created a liberty interest in a statute or regulation
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and (2) deprivation of that interest caused plaintiff to suffer an ‘atypical and significant
hardship in relation to the ordinary incidents of prison life.’” Cruz v. Prior, No. 3:16-cv1303 (VAB), 2016 WL 5348571, at *2 (D. Conn. Sept. 23, 2016).
Here, Shand has not directed the court to any State of Connecticut statute or
regulation that creates a protected liberty interest in being free from in-cell restraints,
and the court knows of none. Connecticut Department of Corrections Directive 6.5
(“Directive 6.5”) governs in-cell restraints, and it imposes various guidelines for use of
in-cell restraints. See Directive 6.5 at ¶ 8(B). For example, use of in-cell restraints must
be approved by a shift commander, circumstances leading to use of in-cell restraints
must be documented. Id. Directive 6.5 further provides that in-cell restraints must be
applied in such a way that the prisoner can still stand erect, and prisoners on in-cell
restraints must be observed at least every fifteen minutes. Id. Although Directive 6.5
regulates the use of in-cell restraints, there is no indication that Directive 6.5 was
intended to create a protected liberty interest: it contains no language suggesting that it
creates enforceable rights for prisoners. See Sandin, 515 U.S. at 481–82 (overturning
Supreme Court precedent that mandatory language in prison regulations created
enforceable rights).
Although the court does not doubt that in-cell restraints––consisting of handcuffs,
leg irons, and a tether connecting the leg irons to the handcuffs––impose restrictions,
absent an explicit statement by the State of Connecticut that being free from such
restraints is a protected liberty interest, the court cannot presume that such a liberty
interest exists. In Sandin, for example, the Supreme Court held that thirty days in
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punitive segregation did not constitute “the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest.” 515 U.S. at 486. In light of
the high bar established by the Supreme Court, this court concludes that Shand’s three
days in in-cell restraints does not violate a protected liberty interest, absent any
statement to the contrary by the State of Connecticut. See also Alston v. Delpeschio,
15 Civ. 1672 (CSH), 2016 WL 3211805, *5 (D. Conn. Jun. 9, 2016) (prisoner’s
placement in in-cell restraints for more than eighteen hours not sufficient to meet Sandin
threshold); Alston v. Daniels, 2015 WL 7257896, at *9 (D. Conn. Nov. 17, 2015)
(prisoner’s placement in in-cell restraints for approximately a day not an “atypical and
significant hardship” pursuant to Sandin). Therefore, Shand’s Fourteenth Amendment
claim is dismissed.
D. State Law Claims
Shand is also pursuing state law claims of assault and battery against Rivera,
Raines, Mancini, and Does 1–4 for their assaultive behavior during the cell extraction.
See Compl. at ¶¶ 36–38.
This court can exercise supplemental jurisdiction over a state law claim if:
(1) there is a claim arising under the federal constitution or
federal laws; (2) the relationship between the federal claim
and the state claim permits the conclusion that the entire
action comprises but one constitutional case; (3) the federal
claim has substance sufficient to confer subject matter
jurisdiction on the court; and (4) the state and federal claims
derive from a common nucleus of operative fact.
Miller v. Lovett, 879 F.2d 1066, 1071 (2d Cir. 1989), overturned on other grounds,
Graham, 490 U.S. 386 (1989) (citing United Mine Workers of Am. v. Gibbs, 383 U.S.
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715, 725 (1966)). In this case, the first prong is satisfied by the court’s decision to
permit Shand’s Eighth Amendment claims of excessive force and deliberate indifference
to medical needs to go forward.
In Connecticut, “civil assault is defined as ‘the intentional causing of imminent
apprehension of harmful or offensive contact with another.’” Germano v. Dzurenda, 09
Civ. 1316 (SRU), 2011 WL 1214435, *22 (D. Conn. Mar. 28, 2011) (quoting Dewitt v.
John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594 (1985)). “[A]n actor is
subject to liability to another for battery if (a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third person, or an imminent
apprehension of such a contact, and (b) a harmful contact with the person of the other
directly or indirectly results.” Id. (quoting Alteiri v. Colasso, 168 Conn. 329, 334 n.3
(1975)).
Because the court is permitting Shand’s Eighth Amendment excessive force
claim to proceed against Rivera, Raines, Mancini, and Does 1–4, and that claim is
based on the same set of facts as the assault and battery claims, the court will also
permit Shand’s state law assault and battery claims to proceed against those same
defendants at this time. See Boudreau v. Smith, 2017 WL 2979682, at *5 (D. Conn.
July 12, 2017) (courts “should exercise supplemental jurisdiction . . . when federal
constitutional claim of excessive force and assault claim are so tightly interwoven that
decision on former will collaterally estop litigation of latter”).
E.

Supervisor Liability

Shand is suing Chapdelaine, Hines, and Guadarrama for the actions of their
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subordinates: Rivera, Raines, Mancini, and Does 1–4. See Compl. at ¶¶ 43–45. “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 five 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; (4) the official was
grossly negligent in managing subordinates who caused the unlawful condition or event;
or (5) the official failed to take action in response to information regarding the
unconstitutional conduct. Wright, 21 F.3d at 501; Hernandez v. Keane, 341 F.3d 137,
145 (2d Cir. 2003).
Shand alleges that Chapdelaine, Hines, and Guadaramma “creat[ed] a policy
and custom . . . under which [he] was subjected to chemical agents and in-cell restraints
for the actions of his cellmate . . . as well as beating him for the actions of his cellmate .
. . and by failing to adequately supervise and train subordinates who committed the
violations described herein.” Compl. at ¶ 44. He does not, however, allege any facts
suggesting that such a policy or custom exists or any facts to support his conclusion
that Rivera, Raines, Mancini, and Does 1–4 were inadequately trained. Therefore,
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Shand’s conclusory claim of supervisor liability against Chapdelaine, Hines, and
Guadarrama is dismissed as legally insufficient.
IV.

ORDERS
(1) All claims against Chapdelaine, Hines, and Guadarrama are dismissed.

Shand’s Fifth and Fourteenth Amendment claims are dismissed. Shand’s Eighth
Amendment claims for excessive force and deliberate indifference to medical needs and
state law assault and battery claims may proceed against Rivera, Raines, Mancini, and
Does 1–4 in their individual capacities for damages.
(2) The Clerk shall verify the current work addresses for Rivera, Raines, and
Mancini 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 a
defendant fails to return the waiver request, the Clerk shall make arrangements for inperson service by the U.S. Marshal 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).
(3) Because Shand has not identified John Does 1–4 by name, the Clerk is
not able to serve a copy of the Complaint on those defendants in their individual
capacities. Shand 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 four defendants. If
Shand files the notice, the court will direct the Clerk to effect service of the Complaint on
those defendants in their individual capacities. If Shand fails to identify those
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defendants within the time specified, his claim against them will be dismissed pursuant
to Fed. R. Civ. P. 4(m).
(4) Rivera, Raines, Mancini, and Does 1–4 (if identified) 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.
(5) Discovery, pursuant to Federal Rules of Civil Procedure 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.
(6) All motions for summary judgment shall be filed within seven months
(210 days) from the date of this Order.
SO ORDERED.
Dated this 2nd day of January, 2018, at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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