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Torrez v. Mulligan

United States District Court, D. Connecticut

June 16, 2017

JOSE ANTHONY TORREZ, Plaintiff,
v.
WILLIAM MULLIGAN, Defendants.

          INITIAL REVIEW ORDER

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE.

         Jose Anthony Torrez, currently confined at Northern Correctional Institution in Somers, Connecticut, filed this case pro se under 42 U.S.C. § 1983. Torrez alleges that the defendants used excessive force and retaliated against him, and subjected him to unconstitutional conditions of confinement. He also asserts claims under the Americans with Disabilities Act. Torrez names as defendants Warden William Mulligan; Correctional Officers Laprey, Collier, Hafner, Wochomurka, and Sanchez; Lieutenant James Delpesio; Captain Pafumi; Nurse Paul Balatka; Head Nurse Barbra Savoie; and the Department of Correction. Torrez seeks damages as well as declaratory and injunctive relief. The complaint was filed on April 24, 2017. Torrez's motion to proceed in forma pauperis was granted on May 3, 2017.

         Under section 1915A of Title 28 of the United States Code, I 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. 28 U.S.C. § 1915A. 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 plausible 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. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         I. Allegations

         Torrez was transferred to Northern Correctional Institution as a pretrial detainee. He was sentenced on May 27, 2016. Thus, at the time of the incident underlying the complaint, Torrez was a sentenced inmate. See www.ctinmateinfo.state.ct.us (last visited May 4, 2017). Torrez is classified as seriously mentally ill, suffering from post-traumatic stress disorder as a result of childhood trauma. He has been diagnosed with several other mental disorders and takes medication.

         On the afternoon of July 3, 2016, Torrez was waiting for correctional officers to escort him to make a social phone call. When Laprey was touring the unit, Torrez reminded him about the scheduled social call. Laprey asked whether Torres was going to call his boyfriend. Every time Laprey toured the unit, he made sexually inappropriate remarks to Torrez. Although Torrez asked him to stop, Laprey continued making inappropriate comments.

         Later that day, Laprey and another officer came to apply restraints and escort Torrez to make his call. When Torrez again asked Laprey to refrain from making derogatory comments, Laprey stated that he would do what he wanted and promised that Torrez would get f-ked up for trying to tell him what to do.

         At the conclusion of the call, Laprey came to the dayroom to escort Torrez back to his cell. When Laprey made another comment, Torrez asked him to stop commenting. Laprey told Torrez that he would be “slammed.” As Laprey walked toward Torrez in an aggressive manner, Torrez fled. He stopped when Laprey stated that he was joking and Laprey escorted him back to his cell.

         They stopped outside the cell door. Laprey reminded Torrez of his promise to slam him and proceeded to repeatedly shove Torrez against the wall and slam him to the floor. These actions damaged Torrez's knee. Although Torrez was not resisting, Laprey then called a “code 11” which requests emergency assistance for prisoner noncompliance.

         When additional staff responded, Torrez was lifted to his feet to be escorted to the medical unit. Delpesio sprayed Torrez with an excessive amount of chemical agent. After he was decontaminated in the medical unit, Torrez was escorted to a cell and strip searched. The strip search caused Torrez to re-experience sexual abuse he had endured as a child. After the search, Torrez was dressed and defendant Collier applied in-cell restraints while defendants Hafner and Sanchez forcibly held Torrez in place. The tether chain on the in-cell restraints was too short, preventing Torrez from standing erect. Nurse Balatka approved the restraints.

         Torrez remained in the restraints for eighteen hours, from 9:00 p.m. on July 3, 2016, until 3:36 p.m. on July 4, 2016. No medical staff member corrected these conditions during that time. Nurse Savoie checked the restraints at 7:55 a.m. on July 4, 2016. She did not order the restraints adjusted or removed. Instead, she reported that the restraints were within the normal range.

         II. Analysis

         Torrez includes five counts in his complaint: (1) all defendants were deliberately indifferent to his safety and medical needs in violation of the Eighth Amendment and the Americans with Disabilities Act; (2) Laprey, Sanchez and Delpesio used excessive force against Torrez; (3) Laprey and Delpesio violated Torrez's First Amendment right of free speech and his Fourteenth Amendment right to equal protection of the laws, and Mulligan, Pafumi, Hafner, Wochomurka, Savoie and Balatka retaliated against Torrez; (4) all defendants subjected Torrez to unconstitutional conditions of confinement; and (5) Department of Correction, Mulligan, Delpesio, Pafumi, Savoie and Balatka failed to protect him and supervise their subordinates.

         A. Excessive Force

         The use of excessive force against a prisoner can constitute cruel and unusual punishment even where the inmate does not suffer serious injuries. See Hudson v. McMillian, 502 U.S. 1, 4 (1992), accord Wilkins v. Gaddy, 559 U.S. 34, 34, 36 (2010) (per curiam). As with all Eighth Amendment claims, excessive force claims have subjective and objective components. The subjective component focuses on “the defendant's motive for his conduct”; the objective component focuses “on the conduct's effect.” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). In excessive force cases, the “core judicial inquiry” is “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7 (internal quotation marks omitted)).

         Torrez contends that Laprey, Sanchez and Delpesio used excessive force against him. He alleges that Laprey shoved him into the wall and slammed him to the floor, Delpesio used an excessive amount of chemical agent, and Sanchez forcibly held him when restraints were applied. Although the allegations are sufficient to state a plausible excessive force claim against Laprey and Delpesio, they are not sufficient with respect to Sanchez. The only allegation regarding Sanchez is that he physically held Torrez to allow in-cell restraints to be placed on Torrez. Compl. at ¶ 33. Torrez does not allege that the manner in which Sanchez physically held him was excessive. Accordingly, the excessive force claim against Sanchez is dismissed.

         B. Failu ...


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