Pena v. Stanley et al

Filing 8

INITIAL REVIEW ORDER - Discovery due by 6/17/2021; Dispositive Motions due by 7/17/2021. See attached Order. Signed by Judge Kari A. Dooley on 11/17/2020.(Gould, K.)

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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMES PENA,
Plaintiff,
v.
STANLEY, et al.,
Defendants.

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No. 3:20-cv-1683 (KAD)

INITIAL REVIEW ORDER
Plaintiff, James Pena (“Pena”), currently confined at Corrigan-Radgowski Correctional
Center in Uncasville, Connecticut, filed this complaint pro se pursuant to 42 U.S.C. § 1983.
Pena asserts Eighth Amendment claims for use of excessive force, failure to protect, and
deliberate indifference to safety as well as state law tort claims against four defendants: former
Unit Manager Stanley, Correctional Officer Rodriguez, Unit Manager Chevalier, and former
Commissioner Cook. He seeks both damages and injunctive relief. The complaint was received
on November 9, 2020. Pena’s motion to proceed in forma pauperis was granted on November
16, 2020.
Standard of Review
Under section 1915A of title 28 of the United States Code, 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. Id. In reviewing a pro se complaint, the Court must
assume the truth of the allegations, and interpret them liberally to “raise the strongest arguments

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[they] suggest[].” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). see also Tracy v.
Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se
litigants). 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.”
Twombly, 550 U.S. at 570.
Allegations
On October 25, 2019, Pena was transferred from Corrigan-Radgowski Correctional
Center (“Corrigan”) to Walker Correctional Institution (“Walker”). Doc. No. 1 ¶ 9. Upon
arrival Pena asked Unit Manager Stanley if he would be placed on “rec alone” status as he was
on that status when previously confined at Walker. Id. ¶ 10. “Rec alone” status is similar to
protective custody. Id. ¶ 11. Unit Manager Stanley told Pena that there was no recreation that
day and to speak to him on Monday. Id. ¶ 10. Pena also wrote a request to Unit Manager
Stanley and slipped it under his office door the same day. Id. ¶ 12.
Before Pena entered the housing unit, cells 73-84 were split into two groups: cells 73-78
were designated ticket group A1, cells 79-84 ticket group A2. Id. ¶¶ 13, 15. Pena was placed in
cell 78 and the sign on the door was changed from A1 to A2. Id. ¶ 13. When Pena questioned
the change, the officer told him to speak to Unit Manager Stanley. Id. ¶ 14.
Pena spoke to Unit Manager Stanley before recreation on Monday, October 28, 2019. Id.
¶ 16. Pena asked if he would be placed on “rec alone” status or switched to group A1. Id. Pena
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reported that he had received verbal threats from inmates in group A2 because of his criminal
charges. Id. Pena said he knew the inmates in group A1 as he had previously been in that group.
Id. Unit Manager Stanley denied the request and told Pena to “stop complaining and man up.”
Id. Pena then stated that he feared for his life and requested “rec alone” status. Id. ¶ 17. Pena
said he had previously been on “rec alone” status because he was labeled a “plate” as a result of
his criminal charge for sexual assault. Id. ¶ 18. Unit Manager Stanley responded, “No. We[’re]
not playing musical cell. You[‘re] not in danger, stop the act.” Id. ¶ 17.
Pena went to recreation yard two. Id. ¶ 18. As the other group A2 inmates entered the
yard, Pena noted “the look of mischief on several of the[ir] faces” and asked Officer Rodriguez if
he could go back inside. Id. ¶ 19. Officer Rodriguez said he could not go in before the end of
the recreation period. Id. Pena then asked Officer Rodriguez to call the unit manager. Id.
Officer Rodriguez refused and told Pena to “stop complaining.” Id.
At the end of the recreation period, two inmates attacked Pena. Id. ¶ 20. After
correctional officers broke up the fight, Pena was lying on the wet ground in the middle of the
walkway to the recreation yard. Id. ¶ 21. Officer Rodriguez stomped on Pena’s foot repeatedly
for no reason. Id. When Pena said there was no need for the force as he was already handcuffed,
Officer Rodriguez told him to “shup up.” Id.
On November 27, 2019, Pena was transferred to Northern Correctional Institution
(“Northern”). Id. ¶ 22. On December 1, 2019, Pena told the unit manager that he was labeled a
“plate” and requested “rec alone” status. Id. ¶ 23. Pena was permitted to attend recreation alone
until December 29, 2019 when he was put in the recreation yard with an active gang member.
Id. ¶ 24. The gang member assaulted Pena. Id. When Pena questioned Unit Manager Chevalier
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about being in recreation with a gang member, Unit Manager Chevalier stated that he was “not
here to accommodate” Pena. Id. ¶ 25.
Pena submitted a request to Commissioner Cook stating that various correctional
employees, including Stanley, Chevalier, and Rodriguez, were “acting with malicious intent”
because of Pena’s prior lawsuits, complaints, and grievances and asking that they be punished,
but “nothing was brought out of it.” Id. ¶ 26.
Discussion
Pens asserts claims of failure to protect and deliberate indifference to safety against
defendants Stanley, Chevalier, and Cook and a claim for use of excessive force against defendant
Rodriguez. He also asserts state law claims for negligence against defendants Stanley,
Chevalier, and Cook and assault and battery against defendant Rodriguez.1
Use of Excessive Force
Pena alleges that Officer Rodriguez used excessive force against him by stomping on his
foot. The “core judicial inquiry” in analyzing an excessive force claim is not “whether a certain
quantum of injury was sustained, but rather whether force was applied in a good-faith effort to

1

The court limits its review for purposes of 28 U.S.C. § 1915A to federal law claims because the purpose
of an initial review order is to make a speedy initial screening determination of whether the lawsuit may proceed at
all in federal court and should be served upon any of the named defendants. If there are no facially plausible federal
law claims against any of the named defendants, then the court would decline to exercise supplemental jurisdiction
over any state law claims pursuant to 28 U.S.C. § 1367. On the other hand, if there are any viable federal law claims
that remain, then the validity of any accompanying state law claims may be appropriately addressed in the usual
course by way of a motion to dismiss or motion for summary judgment. More generally, the court's determination
for purposes of an initial review order under 28 U.S.C. § 1915A that any claim may proceed against a defendant is
without prejudice to the right of any defendant to seek dismissal of any claims by way of a motion to dismiss or
motion for summary judgment in the event that the court has overlooked a controlling legal principle or if there are
additional facts that would warrant dismissal of a claim.

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maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy,
559 U.S. 34, 34, 37 (2010) (per curiam). To evaluate the defendant’s conduct, the court
considers various factors including: the extent of the injuries and the mental state of the inmate;
“the need for application of force; the correlation between that need and the amount of force
used; the threat reasonably perceived by the defendant[]; and any efforts by the defendant[] to
temper the severity of a forceful response.” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)
(quoting Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (internal quotation marks
omitted). In addition, Pena must show, objectively, that Officer Rodriguez’s actions violated
“contemporary standards of decency,” which will always occur if the use of force is malicious.
Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotation marks omitted)
(citing Hudson v. McMillian, 503 U.S. 1, 8 (1992).
Pena alleges that Officer Rodriguez stomped repeatedly on his foot for no reason and at a
time when Pena was lying on the ground handcuffed. The allegations plausibly state a claim for
a malicious use of force.
Failure to Protect / Deliberate Indifference to Safety
Pena also alleges that defendants Stanley, Chevalier, and Cook were deliberately
indifferent to his safety or failed to protect him from harm by ignoring his reports of threats and
failing to continue him on “rec alone” status.
Prison officials have a duty to make reasonable efforts to ensure inmate safety. This duty
includes protecting inmates from harm at the hands of other inmates. See Farmer v. Brennan,
511 U.S. 825, 832 (1994); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). To establish a
constitutional violation, Pena must show that the conditions of his incarceration posed a
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substantial risk of serious harm and that prison officials were deliberately indifferent to his
safety. See Farmer, 511 U.S. at 834; Conquistador v. Adamaitis, No. 3:19-cv-430(KAD), 2019
WL 1573710, at *2 (D. Conn. Apr. 11, 2019). Deliberate indifference exists where prison
officials know of and disregard an excessive risk to inmate safety. See id. at 837; Bridgewater v.
Taylor, 698 F. Supp. 2d 351, 357 (S.D.N.Y. 2010) (explaining that the defendants must be aware
of facts supporting an inference that harm would occur and must actually draw that inference).
The court makes this determination, not in hindsight, but considering the “facts and
circumstances of which the official was aware at the time he acted or failed to act.” Hartry v.
County of Suffolk, 755 F. Supp. 2d 422, 436 (E.D.N.Y. 2010) (citations and internal quotation
marks omitted).
Pena alleges that he was previously on “rec alone” status at Walker for his protection but
was not returned to that status even when he reminded Unit Manager Stanley of that fact and told
him of threats from other inmates. In addition, although he was permitted to recreate alone at
Northern, he was sent to recreation with an inmate who attacked him. Unit Manager Chevalier
appeared cavalier about the incident stating only that he need not accommodate Pena.
Both unit managers were aware of Pena’s history and concerns but disregarded the threat
to his safety. On initial review, the court credits Pena’s characterization of their actions as a
deliberate disregard for his safety rather than a failure to appreciate the risk of harm. The failure
to protect or deliberate indifference to safety claims will proceed against defendants Stanley and
Chevalier.
Commissioner Cook is not alleged to have directly participated in the incidents
underlying this action. Pena includes Commissioner Cook in this claim because he submitted a
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request to Commissioner Cook about the actions of the other defendants.
Commissioner Cook is a supervisory official. To state a cognizable claim for supervisor
liability, Pena must show that:
“(1) the defendant participated directly in the alleged constitutional violation, (2)
the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference ... by failing to act on information indicating that
unconstitutional acts were occurring.”
Shaw v. Prindle, 661 F. App’x 16, 18 (2d Cir. 2016) (quoting Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995)). Pena appears to bring his claim against Commissioner Cook under section
five, failing to act on information that unconstitutional acts were occurring.
Knowledge of an isolated incident after the incident is over does not support a claim for
supervisory liability. See Ziemba v. Armstrong, 430 F.3d 623, 625 (2d Cir. 2005) (insufficient
evidence to support claim for supervisory liability where supervisor did not learn of incident
until long after it concluded); Andrews v. Gates, No. 3:17-cv-1233(SRU), 2019 WL 2930063, at
*8 (D. Conn. July 8, 2019) (notice after the fact of an isolated incident insufficient to establish
supervisory liability) (citations omitted). Pena has identified two incidents, one at Walker, the
other at Northern, both of which he appears to have included in his complaint to Commissioner
Cook and which Pena believes are related. At this juncture, the court permits this claim to
proceed against Commissioner Cook for further development of the record.
Orders
The case will proceed on the excessive force and deliberate indifference to safety/failure

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to protect claims and related state law claims against the defendants in their individual capacities
only. As Plaintiff does not sue the defendants in their official capacities, any claims for
injunctive relief are dismissed.2
The court enters the following additional 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
packet containing the Complaint and this Order to each defendant at the address by December
14, 2020, and report to the court on the status of the waiver request on the thirty-fifth 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 the defendant in his individual capacity
and the defendant shall be required to pay the cost of such service.
(2)

The Clerk shall send Pena a copy of this Order.

(3)

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.
(4)

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, they shall admit or deny the allegations and respond to the cognizable claim
recited above. They also may include all additional defenses permitted by the Federal Rules.
(5)

Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be

completed by June 17, 2020. Discovery requests need not be filed with the court.

2

The court further notes that the prayer for relief requests that the DOC be ordered to negate the Plaintiff’s
disciplinary ticket for fighting. The DOC is not a defendant.

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(6)

All motions for summary judgment shall be filed by July 17, 2020.

(7)

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.
(8)

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

Court Rule 83.1(c)2 provides that he MUST notify the court. Failure to do so can result in the
dismissal of the case. Pena must give notice of a new address even if he is incarcerated. Pena
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 Pena has more than one
pending case, he should indicate all the case numbers in the notification of change of address.
Pena should also notify the defendants or the attorney for the defendants of his new address.
(9)

Pena shall utilize the Prisoner Efiling Program when filing documents with the

court. Pena is advised that the Program may be used only to file documents with the court. As
local court rules provide that discovery requests are not filed with the court, discovery requests
must be served on defendants’ counsel by regular mail.
(10)

The Clerk shall immediately enter the District of Connecticut Standing Order Re:

Initial Discovery Disclosures concerning cases initiated by self-represented inmates and shall
send a copy to Pena.
SO ORDERED at Bridgeport, Connecticut, this 17th day of November 2020.
/s/
Kari A. Dooley
United States District Judge

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