Parsons v. City of New York et al

Filing 7

MEMORANDUM & ORDER: Plaintiff's 2 application to proceed in forma pauperis is granted. The Court dismisses the claims against the City of New York, allows Plaintiff's claims against the officers to proceed and grants Pla intiff leave to file an amended complaint within 30 days of this Memorandum and Order as to the City of New York. Accordingly, the Court dismisses the claims against the City of New York for failure to state a claim. The Clerk of Court shall mail a copy of this Memorandum and Order and the Complaint to the Corporation Counsel of the New York City Law Department. The Court hereby orders Corporation Counsel to attempt to ascertain the full names and the badge numbers of the John Doe E.S.U. o fficers who were involved in the alleged events on 11/2/2014. Corporation Counsel shall provide this information to the Court within 45 days of the date of this Memorandum and Order. Once Corporation Counsel has provided the requested information f or the officers, the Clerk of Court is directed to amend the docket to reflect that information and to issue summonses against the officers. The United States Marshals Service is directed to serve the officers once summonses are issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 6/19/2017. W/Attachments: # 1 Copies of all unpublished decisions cited in this Order. C/mailed. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------KEVIN PARSONS,

NOT FOR PUBLICATION
Plaintiff,
v.

MEMORANDUM & ORDER
17-CV-2707 (MKB)

THE CITY OF NEW YORK, JOHN DOE #1
EMERGENCY SERVICES UNIT and JOHN DOE
#2 EMERGENCY SERVICES UNIT,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Kevin Parsons, proceeding pro se, commenced the above-captioned action
pursuant to 42 U.S.C. § 1983 against the City of New York and two unnamed Emergency
Services Unit (“E.S.U”) officers, alleging that Defendants violated his federal constitutional
rights. (Compl., Docket Entry No. 1.) Plaintiff’s application to proceed in forma pauperis is
granted. For the reasons discussed below, the Court dismisses the claims against the City of New
York, allows Plaintiff’s claims against the officers to proceed and grants Plaintiff leave to file an
amended complaint within thirty (30) days of this Memorandum and Order as to the City of New
York.
I.

Background
For the purpose of this Memorandum and Order, the Court assumes the truth of the

factual allegations in the Complaint. On November 2, 2014, a fight broke out between inmates

in Plaintiff’s housing unit, prompting E.S.U. officers to intervene.1 (Compl. 6.)2 Plaintiff was
asleep and the officers woke him, told him to get out of bed and to get dressed, and threatened
that if he did not comply, he would be sprayed with “mace.” (Id.) After the officers stripsearched Plaintiff, he asked if he could put on his clothing. (Id.) “The E.S.U. officers looked at
each other and nodded to one another and [m]aced [Plaintiff] for asking a question without any
order not being done.” (Id. at 7.) Plaintiff suffered burning in his eyes, face, and skin and
received no medical attention for his injuries, which required him to “wash his face and body in
the sink of [his] cell” to alleviate the pain. (Id. at 7–8, 10.) Plaintiff asserts that these actions
violated his rights under the Fourth and Eighth Amendments. (Id.) Plaintiff seeks unspecified
money damages.3 (Id. at 9–10.)
II. Discussion
a.

Standard of review

A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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At the time of the alleged events and the filing of the Complaint, Plaintiff was
incarcerated. (See Compl. 2 (noting that Plaintiff was incarcerated at the Ogdensburg
Correctional Facility at the time he filed the Complaint).) Plaintiff has subsequently been
released from custody and placed on supervised release. See New York Department of
Corrections and Community Supervision Inmate Lookup, http://nysdoccslookup.doccs.ny.gov/G
CA00P00/WIQ1/WINQ000 (last visited June 19, 2017).
2

Because the Complaint and attachments are not consecutively paginated, the Court
refers to the page numbers assigned by the electronic document filing system (ECF).
3

Plaintiff filed two prior civil actions in this court related to incidents that occurred in
his housing unit on August 11, 2014 and October 14, 2014. Those cases remain pending before
the Court. See Parsons v. Gallagher, No. 17-CV-365 (answer filed and awaiting further action);
Parsons v. City of New York, No. 17-CV-1765 (dismissed by the Court sua sponte but granting
Plaintiff leave to file an amended complaint).
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defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97,
104–105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”). Nevertheless,
the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it
“(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
b. Plaintiff’s section 1983 claims
Plaintiff asserts that Defendants violated his federal constitutional rights under the Eighth
Amendment, which are cognizable claims under section 1983.4
Under section 1983, individuals may bring a private cause of action against persons
“acting under color of state law” to recover money damages for deprivations of their federal or
constitutional rights. Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 55 (2d Cir. 2014) (quoting

4

Although Plaintiff also alleged that the officers’ actions violated his Fourth
Amendment protection against the use of excessive force, because Plaintiff was incarcerated at
the time of the events at issue, he only has a cause of action under the Eighth Amendment.
See Wilkins v. Gaddy, 559 U.S. 34, 36–39 (2010) (holding that the Eighth Amendment standards
apply to a prisoner’s Fourth Amendment excessive force claim); Bonilla v. Jaronczyk, 354 F.
App’x 579, 581 (2d Cir. 2009) (holding that “post-conviction excessive force claims . . . are
properly considered under the Eighth Amendment” (citing Graham v. Connor, 490 U.S. 386, 395
n.10 (1989))).
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42 U.S.C. § 1983). To establish a viable section 1983 claim, a plaintiff must show “the violation
of a right secured by the Constitution and laws of the United States” and that “the alleged
deprivation was committed by a person acting under color of state law.” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (citations and internal quotation marks
omitted).
i.

Plaintiff states plausible claims for relief against the officers

Plaintiff alleges that the officers violated his Eighth Amendment right to be protected
against cruel and unusual punishment when, despite Plaintiff’s compliance with the officers’
orders, they sprayed him with mace and subsequently denied him medical treatment for the burns
to his eyes, face and skin. (Compl. 6–7, 9–10.) The Court construes the allegations to assert two
separate Eighth Amendment claims: (1) the officers used excessive force, and (2) the officers
were deliberately indifferent to Plaintiff’s serious medical needs.
“The Eighth Amendment protects prisoners from cruel and unusual punishment by
prison officials.” Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (citing Wilson v. Seiter,
501 U.S. 294, 297 (1991)). A prisoner bringing an Eighth Amendment claim must allege (1)
“that the defendant acted with a [] sufficiently culpable state of mind,” and (2) “that the conduct
was objectively harmful enough or sufficiently serious to reach constitutional dimensions.” Id.
(internal quotation marks omitted) (quoting Hudson v. McMillan, 503 U.S. 1, 8 (1992)).
1.

Plaintiff states a plausible excessive force claim against the
officers

Plaintiffs states a plausible claim against the officers for excessive force. Plaintiff alleges
that after he had complied with the officers’ orders, they sprayed him with mace, which caused
his eyes, face and skin to burn and he was unable to alleviate the pain. (Compl. 6–7.)

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For an Eighth Amendment excessive force claim, “[t]he subjective component of the
claim requires a showing that the defendant had the necessary level of culpability, shown by
actions characterized by wantoness in light of the particular circumstances surrounding the
challenged conduct.” Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (citations and internal
quotation marks omitted). “[T]he test for wantoness is whether the force was used in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id.
(citations omitted). “Accordingly, determining whether officers [subjectively] used excessive
force necessarily turns on the need for the force used.” Id. at 64. “The objective component of
the [] test is also context specific, turning upon contemporary standards of decency.” Id.
(citations and internal quotation marks omitted). A prisoner satisfies the objective component
“even if [he] does not suffer serious or significant injury, as long as the amount of force used was
not de minimis.” Id. (citations and internal quotation marks omitted).
Here, Plaintiff states a plausible claim for excessive force because he alleges that the
officers sprayed him with mace without provocation, and he suffered injuries as a result. Courts
in this Circuit have repeatedly held that a prison official’s use of mace or chemical spray against
a compliant prisoner satisfies both the subjective and objective elements of an Eighth
Amendment excessive force claim; the subjective element is satisfied in such cases because
spraying a complaint prisoner with mace cannot be characterized as an attempt to maintain or
restore discipline, and the objective element is satisfied where a prisoner alleges that he suffered
injuries beyond the immediate discomfort that results from being sprayed with mace. See
Al-Bukhari v. Semple, No. 16-CV-1428, 2017 WL 2125746, at *4 (D. Conn. May. 16, 2017)
(finding that a prisoner stated an Eighth Amendment excessive force claim because he alleged
that the officers, inter alia, “sprayed him with a harmful chemical agent, even though [he] had

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not been resisting their efforts to escort him out of the cell”); West v. City of New York, No. 13CV-5155, 2014 WL 4290813, at *4 (S.D.N.Y. Aug. 28, 2014) (finding that a prisoner’s
allegations that a correctional officer “sprayed him with mace” for taking a shower, which
resulted in “difficulty breathing, severe itching and burning and skin irritation” stated an Eighth
Amendment excessive force claim because the spraying lacked “any legitimate purpose” and the
prisoner suffered injuries from the spraying); Mattison v. Decker, No. 10-CV-0504, 2012 WL
398812, at *6 (N.D.N.Y. Jan. 11, 2012) (finding that a prisoner stated an Eighth Amendment
excessive force claim where four officers, inter alia, sprayed him with mace while attempting to
transfer the prisoner to administrative segregation and the prisoner alleged that he was compliant
during the transfer and suffered injuries as a result of the officers’ conduct); Medina v. Gonzalez,
No. 08-CV-1520, 2009 WL 400639, at *2 (S.D.N.Y. Jan. 9, 2009) (finding that a prisoner stated
an Eighth Amendment excessive force claim because the “factual allegations provide[d]
sufficient details to show that he suffered pain and injury, and, though the plaintiff did not
surrender his slippers to the correction officer immediately, the use of a chemical agent . . .
do[es] not appear to qualify as force applied in a good-faith effort to maintain or restore
discipline” (citation and internal quotation marks omitted)); cf. Perez v. City of New York, No.
17-CV-366, 2017 WL 684186, at *3 (E.D.N.Y. Feb. 21, 2017) (finding that a prisoner failed to
state an Eighth Amendment excessive force claim because the correction officers sprayed him
with mace “to restore order during the course of a prison disturbance”); Reeder v. Hogan, No.
09-CV-520, 2013 WL 2632600, at *5 (N.D.N.Y. June 11, 2013) (dismissing a prisoner’s Eighth
Amendment excessive force claim where he alleged that he was sprayed with mace and suffered
injuries as a result because the “defendants’ actions indicate that their use of chemical agents was
in response to [a] perceived threat [as] [the] plaintiff aggressively refuse[d] to comply”)

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(adopting report and recommendation); Brown v. Banks, No. 06-CV-14304, 2008 WL 3833227,
at *1 (S.D.N.Y. Aug. 14, 2008) (finding that a prisoner’s Eighth Amendment claim likely would
not succeed because he alleged that “after he disobeyed an order to remove his jacket, the
defendants sprayed him with mace”).
Plaintiff alleges that after he had complied with the officers’ orders, they sprayed him
with mace, which caused his eyes, face and skin to burn and he was unable to alleviate the pain.
Because Plaintiff’s allegations show that the officers sprayed him with mace without any “goodfaith effort to maintain or restore discipline” and Plaintiff appears to have suffered injuries
beyond the immediate discomfort attributable to being sprayed with mace, Plaintiff states a
plausible Eighth Amendment excessive force claim. See Harris, 818 F.3d at 63; West, 2014 WL
4290813, at *4.
2.

Plaintiff states a plausible claim against the officers for
deliberate indifference to serious medical needs

Plaintiff states a plausible claim against the officers for deliberate indifference to serious
medical needs. Plaintiff alleges that the officers sprayed Plaintiff with mace, which caused
Plaintiff’s eyes, face and skin to burn, and subsequently denied him any medical treatment,
which forced Plaintiff to “wash his face and body in the sink of [his] cell.” (Compl. 7.)
To establish a claim of deliberate indifference to serious medical needs, a prisoner must
show that (1) he had objectively “serious medical needs,” and (2) this condition was met with
subjective “deliberate indifference” on the part of the defendants. Hill v. Curcione, 657 F.3d 116,
122 (2d Cir. 2011) (quoting Estelle, 429 U.S. at 104). The subjective component requires the
prisoner to show that at the time of the alleged incident, “the [defendants were] aware of facts
from which the inference could be drawn that a substantial risk of serious harm exist[ed].” Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “The objective component requires that

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the alleged deprivation [of medical treatment] must be sufficiently serious, in the sense that a
condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Id.
(citation and internal quotation marks omitted).
Plaintiff’s allegations satisfy the subjective element, as they establish that the officers
were aware of a substantial risk of serious harm but nevertheless failed to provide him with
access to medical treatment. See Al-Bukhari, 2017 WL 2125746, at *4 (finding that a prisoner
stated an Eighth Amendment claim for deliberate indifference to serious medical needs because
he alleged that he was suffering from “pain as a result of being sprayed with a chemical agent
and the staff repeatedly denied his requests for an adequate shower to clean himself and
decontaminate the agent”); West, 2014 WL 4290813, at *5 (finding that a prisoner stated an
Eighth Amendment claim for deliberate indifference to serious medical needs because after a
correction officer sprayed him with mace, “she and other corrections officers left him in the
shower for approximately two hours”).
In addition, Plaintiff’s allegations that the mace caused burning to his eyes, face and skin
satisfy the objective element — that he suffered from serious medical needs. Injuries or pain
resulting from being sprayed with mace sufficiently establish the existence of a serious medical
need deserving of medical attention. See Al-Bukhari, 2017 WL 2125746, at *4 (finding that a
prisoner established the existence of a serious medical need because he alleged that he was
suffering from “pain as a result of being sprayed with a chemical agent”); West, 2014 WL
4290813, at *5 (finding that a prisoner established the existence of a serious medical need where
he was sprayed with mace, which resulted in “difficulty breathing, severe itching and burning,
and skin discoloration”); Ramos v. Quiros, No. 11-CV-1616, 2012 WL 4501673, at *2–3, 6 (D.
Conn. Sept. 27, 2012) (finding that a prisoner established the existence of a serious medical need

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where he alleged he was sprayed with mace and subsequently denied medical treatment); Santos
v. N.Y.C. Dep’t of Correction, No. 08-CV-8790, 2010 WL 1142066, at *10–11 (S.D.N.Y. Feb. 25,
2010) (finding that a prisoner established the existence of a serious medical need where he was
sprayed in the face with a fire extinguisher, which caused pain in his face and left eye).
Accordingly, Plaintiff states a plausible claim against the officers for deliberate
indifference to serious medical needs.
ii. Plaintiff fails to state a claim against the City of New York
Plaintiff alleges that the City of New York is liable for the officers’ actions, but fails to
allege that the officers’ actions were the result of an unconstitutional policy or custom. (Compl.
1, 3, 6–10.)
A municipality like the City of New York can be liable under section 1983 only if a
plaintiff can demonstrate “(1) an official [municipal] policy or custom that (2) cause[d] the
plaintiff to be subjected to (3) a denial of a constitutional right.” Torraco v. Port Auth. of N.Y. &
N.J., 615 F.3d 129, 140 (2d Cir. 2010) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d
Cir. 2007)). An official municipal policy and or custom may be: (1) a formal policy officially
endorsed by the municipality; (2) actions or decisions made by municipal officials with decisionmaking authority; (3) a practice so persistent and widespread that it constitutes a custom of
which policymakers must have been aware; or (4) a failure by policymakers to properly train or
supervise their subordinates, such that the policymakers exercised “deliberate indifference” to
the rights of the plaintiff and others encountering those subordinates. See Iacovangelo v. Corr.
Med. Care, Inc., 624 F. App’x 10, 13–14 (2d Cir. 2015) (formal policy officially endorsed by the
municipality); Matusick, 757 F.3d at 62 (widespread and persistent practice); Carter v. Inc. Vill.
of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014) (failure to train amounting to deliberate
indifference); Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012) (policymaking official’s
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“express” or “tacit” ratification of low-level employee’s actions). Because Plaintiff fails to
allege that the officers’ actions were the result of an unconstitutional policy or custom
attributable to the City of New York, the Court dismisses Plaintiff’s claims against the City of
New York for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
iii. Leave to amend
In light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file an amended
complaint within thirty (30) days of this Memorandum and Order that identifies the
unconstitutional policy or custom that caused the alleged violation of his constitutional rights.
Plaintiff is advised that the amended complaint will completely replace the original complaint.
Therefore, Plaintiff must include in the amended complaint the allegations against the officers.
Plaintiff is further advised that the amended complaint must be captioned “Amended
Complaint,” and must bear the same docket number as this Memorandum and Order. If Plaintiff
fails to file an amended complaint within the time allowed, the Court will dismiss the claims
against the City of New York with prejudice for the reasons set forth above.
III. Conclusion
The claims against the officers may proceed, and the Court dismisses the claims against
the City of New York for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk
of Court shall mail a copy of this Memorandum and Order and the Complaint to the Corporation
Counsel of the New York City Law Department. The Court hereby orders Corporation Counsel
to attempt to ascertain the full names and the badge numbers of the John Doe E.S.U. officers
who were involved in the alleged events on November 2, 2014. Corporation Counsel shall
provide this information to the Court within forty-five (45) days of the date of this Memorandum
and Order. Once Corporation Counsel has provided the requested information for the officers,
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the Clerk of Court is directed to amend the docket to reflect that information and to issue
summonses against the officers. The United States Marshals Service is directed to serve the
officers once summonses are issued.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith, and therefore in forma pauperis status
is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45
(1962).

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: June 19, 2017
Brooklyn, New York

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