United States District Court, D. Connecticut
INITIAL REVIEW ORDER
R. UNDERHILL, UNITED STATES DISTRICT JUDGE.
Velez Cruz (“Cruz”), currently confined at
MacDougall-Walker Correctional Institution in Suffield,
Connecticut, filed this complaint pro se under 42
U.S.C. § 1983 asserting violation of his Eighth
Amendment right to be free from use of excessive force. The
named defendants are Captain Sailius (“Sailius”),
Lieutenant Prior (“Prior”), and Correctional
Officer Montinez. Cruz's complaint was received on
August 17, 2017, and his motion to proceed in forma
pauperis was granted on September 7, 2017.
to 28 U.S.C. § 1915A, 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. 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).
suffers from hemophilia. On July 19, 2017, he was put in
handcuffs behind his back and shackled. Correctional staff
then kicked and punched Cruz in his face and head, and
Lieutenant Prior sprayed him with mace. Medical reports at
Walker Correctional Institution will document minor bruising
as a result of the incident.
cover up the assault, Sailius issued Cruz a false
disciplinary report for attempted assault. Correctional
Officer Melandez/Montinez was the disciplinary investigator.
In retaliation for his complaints about the use of excessive
force, defendant Sailius had Cruz “cronic
only relief requested by Cruz in the complaint is immunity
“from being arrested for any crime in the State of
Connecticut or put in front of a Judge and no other [criminal
authority] shall be called all of my crimal record should be
expunged and removed from any record every last one of my
crimes I have be[e]n convicted or pleaded to for the rest of
my life.” Doc. # 1, at 7.
complaint against Sailius and, likely, Montinez/Melandez,
must be dismissed for failure to state a claim, and must be
dismissed with respect to all defendants for failure to
exhaust administrative remedies. Cruz's complaint
alleges, at most, three types of wrong: First, he complains
of excessive use of force while he was handcuffed and
shackled, second, he states that Sailius issued him a false
disciplinary report, and third, he states that Sailius, with
the warden's permission, had Cruz chronically
respect to his excessive force claim, Cruz appears to include
Prior in his description of prison officials who used
excessive force by stating that Prior sprayed him with mace.
Cruz fails, however, to allege that Sailius used excessive
force or was even present during the incident. Cruz may or
may not allege that a Correctional Officer
“Melandez” (or, “Montinez”, if this
is meant to refer to the third named defendant) was present
or involved, stating that “C/O Melandez the
dis[ciplinary] investigator and Lieutenant Prior were both
invol[ved] in the [excessive] force claim I am filing[.] I
could not tell you who else was there because I was spr[ayed]
with mace by Lt Prior.” The allegation that
Melandez/Montinez was involved, coupled with Cruz's
assertion that he cannot say who else was present
during the use of excessive force, may or may not allow a
sufficiently plausible inference that Melandez/Montinez was
present. The allegation is unlikely, however, to allow more
than speculative inferences that whichever specific
correctional officer Cruz is attempting to name may be liable
for the complained of use of excessive force. Because I
dismiss Cruz's excessive force claim for failure to
exhaust administrative remedies, I need not decide this issue
at this time.
alleges that Sailius issued him a false disciplinary report
following the incident. Although “a prison inmate has
no general constitutional right to be free from being falsely
accused in a misbehavior report”, a false accusation
may be cognizable as part of a due process violation.
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.
1997). A false disciplinary report “violates due
process only where either procedural protections were denied
that would have allowed the inmate to expose the falsity of
the evidence against him, or where the fabrication of
evidence was motivated by a desire to retaliate for the
inmate's exercise of his substantive constitutional
rights”. Mitchell v. Senkowski, 158 F.
App'x 346, 349 (2d Cir. 2005) (citations omitted).
Although Cruz does allege that Sailius retaliated against him
for complaining about the use of excessive force, any
complaints by Cruz would have occurred after the disciplinary
report was issued. Thus, the issuance of the report could not
have been motivated by a desire to retaliate. Cruz includes
no allegations regarding the disciplinary hearing. He does
not even allege that he was found guilty of the charge. Thus,
the complaint fails to allege a plausible due process claim
relating to the disciplinary proceeding.
only other claim is a general retaliation claim against
Sailius. Cruz alleges that in retaliation for his reporting
of the incident, Sailius had him disciplined. To state a
retaliation claim, Cruz must show that he engaged in
constitutionally protected conduct and that the protected
conduct was the substantial or motivating factor for adverse
actions taken against him by the defendants. Bilal v.
White, 494 F. App'x 143, 146 (2d Cir. 2012). Only
retaliatory conduct that “would deter a similarly
situated individual of ordinary firmness from exercising . .
. constitutional rights” constitutes an adverse action
for a claim of retaliation. Gill v. Pidlypchak, 389
F.3d 379, 381 (2d Cir. 2004) (internal quotation marks
omitted) (quoting Davis v. Goord, 320 F.3d 346, 353
(2d Cir. 2003)). Because retaliation claims are easy to
fabricate, the courts consider them with “skepticism
and particular care”. Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir. 1995). In stating no more than that
Sailius had him disciplined “because he was retaliating
against [him] for reporting what happen[e]d”, Cruz has
not plead sufficient non-conclusory facts that he suffered an
appropriately defined adverse action as a result of
all of Cruz's claims must fail for failure to exhaust
administrative remedies. The Prison Litigation Reform Act
requires prisoners to exhaust administrative remedies before
filing a federal lawsuit relating to prison conditions. 42
U.S.C. § 1997e(a) (“No action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.”). This exhaustion requirement applies to
all claims regarding “prison life, whether they involve
general circumstances or particular episodes.”
Porter v. Nussle, 534 U.S. 516, 532 (2002).
of all available administrative remedies must occur whether
or not the administrative procedures provide the relief that
the inmate seeks. See Booth v. Churner, 532 U.S.
731, 741 (2001). Furthermore, prisoners must comply with all
procedural rules regarding the grievance process prior to
commencing an action in federal court. See Woodford v.
Ngo, 548 U.S. 81, 90 (2006) (holding that proper
exhaustion “‘means using all steps that the
agency holds out' . . . (so that the agency addresses the
issues on the merits) . . . [and] demands compliance with an
agency's deadlines and other critical procedural
rules” (quoting Pozo v. McCaughtry, 286 F.3d
1022, 1024 (7th Cir. 2002))). Completion of the exhaustion
process after a federal action has been filed does not
satisfy the exhaustion requirement. See Neal v.
Goord, 267 F.3d 116, 122 (2d Cir. 2001). Special
circumstances will not relieve an ...