MCKINNEY v. NURSE CUCINELLA et al
OPINION. Signed by Judge Kevin McNulty on 04/27/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IVAN G. MCKINNEY,
Civ. No. 15-7442 (KM) (MAH)
OFFICER SEVINO, et al.,
KEVIN MCNULTY, U.S.D.J
The p1aintiff Ivan G. McKinney, is currently incarcerated at the New Jersey State Prison
in Trenton, New Jersey. He is proceeding pro se with what this Court has interpreted as a civil
rights complaint filed pursuant to 42 U.S.C.
1983. Presently pending before this Court is the
motion of defendant Officer Savino’ to dismiss the complaint or for a more definite statement.
For the following reasons, the motion will be denied.
Pursuant to 28 U.S.C.
1915(e)(2)(B) and 1915A, I screened the complaint in June,
2016, to determine whether Mr. McKinney had stated a claim upon which relief may be granted.
In doing so, I applied the same standard that would be applied in ruling on a motion to dismiss
for failure to state a claim under Federal Rule of Civil Procedure I 2(b)(6). See Schreane v.
Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000)); Cozirteau v, United States, 287 F. App’x 159, 162 (3d Cir. 2008). 1 further noted that
Defendant’s motion makes it clear that he spells his name Savino, not Sevino as alleged
in the complaint.
pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519 (1972). With
respect to Mr. McKinney’s allegations against Officer Savino, I noted the following:
Mr. McKinney alleges that Officer S[alvino and Officer John Doe
used excessive force against him on July 25, 2013. This apparently
occurred in connection with a court appearance for sentencing.
Officer S[alvino and John Doe, he says, slammed his head into an
elevator without justification. Depending on the context, these
allegations might support a claim. The Court will permit Mr.
McKinney’s excessive force claims against these two defendants to
proceed past screening so that they can be developed factually.
(Dkt.No. 11 atp. 18-19)
STANDARD OF REVIEW ON MOTION TO DISMISS UNDER RULE 12(b)(6)
Federal Rule of Civil Procedure 1 2(b)(6) provides for the dismissal of a complaint, in
whole or in part, if it fails to state a claim upon which relief can be granted. The moving party
bears the burden of showing that no claim has been stated. See Hedges v. United States, 404 F.3d
744, 750 (3d Cir. 2005). In deciding a motion to dismiss, a court must take all allegations in the
complaint as true and view them in the light most favorable to the plaintiff. See Worth v. Seldin,
422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d
478, 483 (3d Cir. 1998); see also Phillzs v. County ofAllegheny, 515 F.3d 224, 231 (3d Cir.
2008) (“reasonable inferences” principle not undermined by later Supreme Court Twombly case,
Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiffs obligation to provide the ‘grounds’ of his
“entitlement to relief requires more than labels and conclusions, and formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Coip. v. Twombly, 550 U.S. 544, 555 (2007).
Thus, the factual allegations must be sufficient to raise a plaintiffs right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also Uinland v.
PLANCO Fin, Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has “facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcrofl v. Jqhal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556). While “[tihe plausibility standard is not akin to a ‘probability
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678 (2009).
As I noted previously, Mr. McKinney is proceeding pro se. In such a case, the complaint
is “to be liberally construed,” and, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93-94
(2007). Nevertheless, it must meet some minimal standard. “While a litigant’s pro se status
requires a court to construe the allegations in the complaint liberally, a litigant is not absolved
from complying with Twombly and the federal pleading requirements merely because s/he
proceeds pro se.” Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir. 2010) (citation omitted).
It is not altogether clear from the face of Mr. MeKinney’s complaint whether he was a
state prisoner at the time of the incident outlined above, or whether he was still a pretrial
detainee. Accordingly, I will analyze Mr. McKinney’s claims under the standards applicable to
both. Claims of excessive force against a defendant by a plaintiff who is a pretrial detainee are
analyzed under the Due Process Clause of the Fourteenth Amendment, rather than the Eighth
Amendment, because pretrial detainees are not properly subject to punishment, whether cruel
and unusual or otherwise. See Dean v. Gloucester Cnty., No. 13-5 197, 2016 WL 818708, at *5
(D.N.J. Mar. 2, 2016) (citing Tapp v. Proto, 404 F. App’x 563, 566 (3d Cir. 2010)) (remaining
citations omitted). Courts apply an objective standard when considering a pretrial detainee’s
claim of excessive force. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015). Thus,
“a pretrial detainee must show only that the force purposely or knowingly used against him was
objectively unreasonable.” Id. at 2473. That objective test “turns on the ‘facts and circumstances
of each particular case.” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “A court
must make this determination from the prospective of a reasonable officers on the scene,
including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id.
Additionally, in Kingsley, the Supreme Court explained:
A court must also account for the “legitimate interests that stem
from [the governments] need to manage the facility in which the
individual is detained,” appropriately deferring to “policies and
practices that in th[e] judgment” ofjail officials “are needed to
preserve internal order and discipline and to maintain institutional
security.” Bell v. WoUIsh, 441 U.S. 520,540,547,99 S. Ct. 1861,
60 L. Ed. 2d 447 (1979).
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used: the
relationship between the need for the use of force and the amount
of force used; the extent of the plaintiff’s injury; any effort made
by the officer to temper or to limit the amount of force; the severity
of the security problem at issue; the threat reasonably perceived by
the officer; and whether the plaintiff was actively resisting. See,
e.g., Graham, supra at 396, 109 5. Ct. 1865.
Kingsley, 135 S. Ct. at 2473.
I find Mr. McKinney has alleged facts sufficient to state a claim under the standard
applicable to pretrial detainees. He alleges that, in connection with a court proceeding, a John
Doe Officer and Officer Savino slammed his head in the elevator, despite the judge never
ordering his removal from the courtroom. Giving these brief allegations the required liberal
reading, I must find that they state a pretrial detainee excessive force claim.
If Mr. McKinney was a state prisoner at the time of the alleged incident, his claim would
be analyzed under the Eighth Amendment. As a panel of the United States for the Third Circuit
has recently explained:
The Eighth Amendment protects inmates from the “wanton and
unnecessary infliction of pain.” Whitley v. Alhers, 475 U.S. 312,
320, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986). When examining
Eighth Amendment excessive force cases, courts generally afford
prison officials “wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security.” Id. at 32 1-22, 106 S. Ct. 1078 (quoting Bell
v. Wofish, 441 U.S. 520, 547, 99 5. Ct. 1861, 60 L. Ed. 2d 447
(1979)). This includes “security measure[s] taken in response to an
actual confrontation with riotous inmates.” Whitley, 475 U.S. at
322, 106 S. Ct. 1078.
“In an excessive force claim, the central question is ‘whether force
was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.’ “Brooks v. Kyler,
204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at
327, 106 S. Ct. 1078). In weighing these issues, we look to the
need for the application of force, the relationship between the need
and the amount of force used, the extent of the injury inflicted, the
extent of the threat to the safety of prison staff and inmates—as
reasonably perceived by prison officials on the facts known to
them, and any efforts made to temper the severity of a forceful
response. Brooks, 204 F.3d at 106.
Conklin v. Hale, No. 16-1181, 2017 WL 680343, at *1 (3d Cir. Feb. 21, 2017). Under this Eighth
Amendment standard, too, Mr. MeKinney’s complaint states a claim. Slamming his head into an
elevator (again, assuming it occurred as described) might well be a use of force outside the broad
range of prison officials’ discretion.
Savino’s motion to dismiss, or in the alternative, for a more definite statement will
therefore be denied. Mr. McKinney’s custody status at the time of the alleged incident, as well as
other relevant facts, can be developed in discovery.
Savino takes exception to the fact that Mr. McKinney did not specifically state that he
was bringing his claims under § 1983. I have interpreted his complaint, however, as one brought
pursuant to § 1983, which is the vehicle for a constitutional claim brought against state actors.
For the foregoing reasons, defendant Officer Savino’s motion to dismiss or for a more
definite statement is denied. An appropriate order will be entered.
DATED: April 27, 2017
United States District Judge
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