Martinez v. USA et al

Filing 8

///REPORT AND RECOMMENDATION. The retaliation claims asserted against any Defendant should be dismissed from this action. Defendants Langley and Santos should be dropped from this action. Court directs service of the FTCA claims upon the United States, and the related Bivens excessive force claims against Brown, Hess, and Galleta, in their individual capacities. So Ordered by Magistrate Judge Andrea K. Johnstone.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Ewin Oscar Martinez
v.

Civil No. 14-cv-231-LM

United States of America et al. 1

REPORT AND RECOMMENDATION

Ewin Oscar Martinez has filed a complaint (doc. no. 1)
alleging that during his transfer to, and incarceration at, the
Federal Correctional Institution, Berlin, New Hampshire (“FCIBerlin”), he was, on two occasions, subjected to excessive
force.

His claims are asserted under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (“FTCA”).
The matter is before this Court for preliminary review to
determine, among other things, whether the Complaint asserts any
claim upon which relief might be granted.

See 28 U.S.C.

§ 1915A(a); LR 4.3(d)(1).

1

In addition to the United States, Martinez names the
following defendants to this action in their individual
capacities: G. Brown, R. Langley, J. Hess, [first name unknown]
Galleta, and B. Santos.

STANDARD
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally.
Pardus, 551 U.S. 89, 94 (2007).

See Erickson v.

Disregarding any legal

conclusions, the court considers whether the factual content in
the pleading, and inferences reasonably drawn therefrom, taken
as true, state a facially plausible claim to relief.

Hernandez-

Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
BACKGROUND
I.

May 14, 2013
Martinez, a federal inmate, was transferred from a prison

in New York to FCI-Berlin on May 14, 2013.

According to the

Complaint, the transfer took approximately thirteen hours,
during which time FCI-Berlin officer G. Brown kept Martinez
shackled at the ankles in “undersized cuffs.”

Despite

Martinez’s complaints of pain and requests for relief, Martinez
asserts, Brown refused to remove the cuffs during the transport,
causing pain and injury to Martinez.

2

II.

June 28, 2013
On June 28, 2013, while housed in the Special Housing Unit

(“SHU”) at FCI-Berlin, Martinez suffered a medical emergency.
In preparation for and during his transport from SHU to the FCIBerlin medical facility, Martinez asserts, defendants Lt. J.
Hess and Capt. Galleta ordered that Martinez be handcuffed
behind his back and placed, face up, onto his wrists.
time Martinez weighed 260 pounds.

At the

Martinez was made to lie on

his wrists for twenty to twenty-five minutes, during which time
he alleges he made the officers aware of the pain in his wrists.
Martinez asserts that he suffered pain and injury due to the
weight of his body resting on his handcuffed wrists.
III. Retaliatory Acts
Martinez also alleges that while he was at FCI-Berlin, he
was retaliated against because he had a reputation for filing
complaints and/or lawsuits against corrections officers.
Defendants R. Langley, J. Hess, Capt. Galleta, and B. Santos
allegedly engaged in retaliation against him that took the form
of: charging Martinez with false or exaggerated disciplinary
reports; requiring Martinez to be last in line in his unit to
receive medical care; giving Martinez a work assignment that he
3

was physically unable to perform; unnecessarily restrictive
housing; excessive monitoring of his whereabouts in the prison;
and verbal harassment.

Martinez states that the retaliatory

disciplinary reports were either expunged or received mild
sanctions; that he was given medical care for his injuries; and
that he received a medical pass allowing him not to have a job
beyond his physical capabilities.
CLAIMS
Martinez asserts the following grounds for relief:
1.
Martinez is entitled to relief, under Bivens,
against defendants Brown, Hess, and Galleta, in their
individual capacities, for violations of his Eighth
Amendment right not to be subject to excessive force when:
(a) Brown held him in undersized ankle cuffs that were too
tight during his transfer to FCI-Berlin on May 14, 2013;
and (b) Hess and Galleta directed that he be placed, on his
back, onto his handcuffed wrists for twenty to twenty-five
minutes, while he was transported to the prison medical
unit on June 28, 2013.
2.
Martinez is entitled to relief against defendant
United States, under the FTCA, for the negligent use of
excessive force by Brown on May 14, 2013, and Hess and
Galleta on June 28, 2013.
3.
Martinez is entitled to relief against defendants
Brown, Langley, Hess, Galleta, and Santos, for violating
his First Amendment rights by subjecting him to adverse
acts and harassment in retaliation for his previous filing
of grievances and lawsuits against corrections officers.

4

I.

Excessive Force
Applying the standard set forth above, the Court finds that

service of the excessive force and negligence claims to be
warranted.

In an Order issued simultaneously with this Report

and Recommendation, the Court directs service of the Bivens
excessive force claims against defendants Brown, Hess, and
Galleta, and the related FTCA claims upon the United States.
II.

Retaliation
To state a claim for retaliation for the exercise of First

Amendment rights, an inmate must allege: (1) that the conduct
which led to the retaliation was protected by the First
Amendment; (2) that he suffered non-de minimis adverse action at
the hands of the prison officials; and (3) that there was a
causal link between the exercise of his First Amendment rights
and the adverse action taken.

See Hannon v. Beard, 645 F.3d 45,

48 (1st Cir. 2011); Starr v. Dube, 334 F. App’x 341, 342 (1st
Cir. 2009).

An adverse act taken in response to protected

conduct is not de minimis, however, if it would deter an
individual of ordinary firmness from exercising First Amendment
rights.

See Starr, 334 F. App’x at 342.

Martinez has failed to allege that the adverse acts at
5

issue were more than de minimis.

Martinez’s allegations of

verbal harassment and threats of discipline, reversed or reduced
disciplinary reports, monitoring of his whereabouts, and an
appropriate work assignment, from which he was quickly relieved,
are not the sort of acts that would chill the exercise of First
Amendment rights by an inmate of ordinary firmness.

See id. at

342-343 (adverse act is de minimis if: it causes only “a few
days of discomfort; the imposition of a minor sanction; inmate
can defend themselves from a retaliatory disciplinary report; a
disciplinary report is later dismissed; or where there is no
“substantial” impact on inmate (internal quotation marks and
citations omitted)).

Accordingly, the Court finds that Martinez

has failed to state an actionable retaliation claim.
CONCLUSION
For the foregoing reasons, the retaliation claims asserted
against any Defendant should be dismissed from this action.
Defendants Langley and Santos should be dropped from this
action.

In an Order issued this date, the Court directs service

of the FTCA claims upon the United States, and the related
Bivens excessive force claims against Brown, Hess, and Galleta,
in their individual capacities.
6

Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice.
R. Civ. P. 72(b)(2).

See Fed.

Failure to file objections within the

specified time waives the right to appeal the District Court’s
order.

See United States v. De Jesús-Viera, 655 F.3d 52, 57

(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).

______________________________
Andrea K. Johnstone
United States Magistrate Judge

August 11, 2014
cc:

Ewin Oscar Martinez, pro se

7