United States District Court, D. Connecticut
INITIAL REVIEW ORDERS
N. CHATIGNY, District Judge.
Johnny McRae brings these two actions pro se pursuant to 42
U.S.C. Â§ 1983. Named as defendants are Correctional Officers
Titus and Parsons. In the complaints, plaintiff alleges that
defendants used excessive force against him when he was
incarcerated at Cybulski Correctional Institution in Enfield,
Connecticut. Plaintiff seeks damages from defendants in their
individual capacities. After review of the complaints
pursuant to 28 U.S.C. Â§ 1915A, the Court concludes that the
complaint in Case No. 15-cv-1674 should be served, and the
complaint in Case No. 15-cv-1749 should be dismissed.
Plaintiff is also directed to provide the Court with his
current mailing address, as set out below.
28 U.S.C. Â§ 1915A, the Court is required to review a
prisoner's complaint against government officials and
dismiss any portion of the complaint that is frivolous,
malicious, or fails to state a claim on which relief may be
granted. In carrying out its responsibility to
perform this screening function, the Court assumes the truth
of factual allegations and interprets them liberally to
"raise the strongest arguments [they] suggest."
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). To
withstand review under Section 1915A, a complaint must
provide factual allegations that support a plausible claim
for relief. Bell Atlantic v. Twombly, 550 U.S. 544,
570 (2007). "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." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Conclusory allegations are not
sufficient. Id. at 678-79.
complaint in the first-filed action, Case No. 15-cv-1674,
alleges the following. On August 6, 2015, plaintiff was
incarcerated at Cybulski Correctional Institution. When
plaintiff was called to receive his legal mail, he made a
joking comment that angered defendant Titus. On the way back
to his cell, plaintiff made another joking comment. Defendant
Parsons overheard the comment and put the plaintiff in a
holding cell. After other inmates left the area, defendants
Titus and Parsons entered the cell. Defendant Parsons then
kicked the plaintiff in the buttocks while defendant Titus
used his forearm to hold the plaintiff against the wall. The
area where the incident occurred is not covered by video or
allegations, generously construed, are sufficient to permit
the case to proceed against the defendants in their
individual capacities for use of excessive force against the
plaintiff in violation of the Eighth Amendment.
also invokes the Standard Humane Rules for the Treatment of
Prisoners, the Basic Principles for the Treatment of
Prisoners, and the Universal Declaration of Human Rights.
However, there is no recognized private right of action
supporting the Court's jurisdiction under these
provisions. See Bittinger v. Johnson, No.
1:14-cv-1560, 2015 WL 3842649, at *4 n.3 (M.D. Pa. June
22, 2015) (rejecting claim for jurisdiction under Universal
Declaration of Human Rights); see also United States v.
Chatman, 351 F.Appx. 740, 741 (3d Cir. 2009) (no private
right of action under Universal Declaration of Human Rights).
Accordingly, the complaint in Case No. 15-cv-1674 will
proceed only as to the Section 1983 claim for use of
to the complaint in the later-filed action, Case No.
15-cv-1749, the allegations repeat almost verbatim the
allegations in the earlier case. In fact, the document
attached to the complaint entitled "Amended Civil Rights
Complaint" appears to be exactly the same document as
was attached to the first-filed complaint. The complaint in
Case No. 15-cv-1749 is therefore dismissed as duplicative of
the claims in Case No. 15-cv-1674, which remains pending as a
result of this Order. See Brown v. Plansky, 24
F.Appx. 26, 28 (2d Cir. 2001) (affirming dismissal under
Section 1915A of complaint that was duplicative of another
pending action); see also Wingate v. New York City, No. 14 CV
4007 ARR, 2014 WL 3747641, at *3 (E.D.N.Y. July 25, 2014)
("[P]laintiffs have no right to maintain two actions on
the same subject in the same court, against the same
defendant at the same time." (quoting Curtis v.
Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000)).
the Court enters the following orders:
Case No. 15-cv-1749 is dismissed pursuant to 28 U.S.C. Â§
Case No. 15-cv-1674, any claims for violation of the
Universal Declaration of Human Rights, the Standard Humane
Rules for the Treatment of Prisoners, and the Basic
Principles for the Treatment of Prisoners, or any invocation
of jurisdiction under those documents, are dismissed pursuant
to 28 U.S.C. Â§ 1915A(b)(1). The case will proceed only as to
the Section 1983 claim for use of excessive force.
Department of Correction records reflect that plaintiff is no
longer confined in a prison facility within Connecticut.
Pursuant to Rule 83.1(c), D. Conn. L. Civ. R., "[a]ny
party appearing pro se must give an address within the
District of Connecticut where service can be made upon him or
her in the same manner as service is made on an
attorney." Plaintiff was made aware of this requirement
when the Court granted his application to proceed in forma
pauperis. See Order, Case No. 15-cv-1674, ECF No. 11.
Plaintiff is directed to file a notice with the Court within
thirty days of the date of this Order including his current
mailing address where he may receive court filings. Failure
to comply with this order will result in dismissal of this
plaintiff updates his address with the Court within the time
specified, the Clerk shall verify the current work addresses
of defendants Parson and Titus with the Department of
Correction Office of Legal Affairs and mail a waiver of
service of process request packet to each defendant at the
confirmed address. On the thirty-fifth day after mailing, the
Clerk shall report to the court on the status of the waiver
request. 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 him in his individual capacity,
and the defendant shall be required to pay the costs of such
service in accordance with Federal Rule of Civil Procedure
Clerk shall send written notice to plaintiff of the status of