Velez v. Harris

          INITIAL REVEW ORDER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Alejandro Velez (“Plaintiff”), incarcerated at the Cheshire Correctional Institution, filed a civil Complaint under 42 U.S.C. § 1983 against Lieutenant Harris and Correctional Officers Rivard, Berloni, Field, Pacileo, and Brouwer (collectively “Defendants”). Mr. Velez alleges that Defendants, in both their individual and official capacities, used excessive force against him and failed to intervene/protect him from harm in violation of his Fourth, Eighth, and Fourteenth Amendment rights and state law.

         For the following reasons, the claims against Defendants in their official capacity are DISMISSED, the Fourth and Fourteenth Amendment claims are DISMISSED, and the Eighth Amendment and state law claims against Defendants in their individual capacity are allowed to PROCEED.

         1. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         On February 26, 2016, Mr. Velez alleges that a prison official at Corrigan-Radgowski Correctional Institution issued a disciplinary report to Mr. Velez for indecent exposure. Compl. ¶ 2, ECF No. 1. Later that day, Lieutenant Harris and Officers Rivard, Berloni, Field, Pacileo, and Brouwer arrived at Mr. Velez's cell to escort him to the restrictive housing unit. Id. ¶ 3. Officer Pacileo videotaped the escort. Id. ¶ 4.

         After an officer opened the cell door, Lieutenant Harris allegedly sprayed Mr. Velez in the face with mace. Id. ¶¶ 7-9. Officers Rivard, Berloni, and Field entered the cell and allegedly threw Mr. Velez against the wall. Id. ¶ 11. Officer Rivald allegedly punched Mr. Velez in the face, neck and body and swore at him. Id. ¶ 12. Officer Pacileo also allegedly punched and kneed Mr. Velez. See Id. ¶ 14. Although Officers Rivard, Berloni, Field, and Pacileo had complete control of Mr. Velez, Officer Rivard allegedly continued to punch Mr. Velez in the face, head, neck, stomach, ribs and penis and forcefully kneed him. Officer Pacileo allegedly continued to assault Mr. Velez, as well. Id. ¶¶ 16-18. Mr. Velez claims that Lieutenant Harris refused to intervene and stop the assaultive behavior of Officers Rivard and Pacileo. Id. ¶ 21.

         Officers Rivard, Berloni, Field and Pacileo then threw Mr. Velez to the floor of the cell. Id. ¶ 22. Mr. Velez alleges the officers continued to assault him as he lay on the ground. Id. ¶¶ 23, 26. Lieutenant Harris then allegedly entered the cell, directed Mr. Velez to stop resisting and sprayed him in the face with mace. Id. ¶ 24.

         Following the mace, Mr. Velez claims that Officers Rivard, Berloni, Field, and Pacileo handcuffed him behind his back and stood him up. Id. ¶ 27. At that point, Mr. Velez noticed that Officer Brouwer was videotaping the incident. Id. ¶¶ 28-29. Allegedly, Officer Brouwer never made any attempt to stop the other officers from assaulting Mr. Velez. Id. ¶ 34.

         During Mr. Velez's escort to the restrictive housing unit, Officers Berloni and Pacileo allegedly twisted and turned Mr. Velez's handcuffs and caused them to dig into his wrists. Id. ¶ 30. A nurse treated Mr. Velez for the effects of the mace, but did not treat an injury to his leg. Id. ¶ 35.

         Mr. Velez allegedly suffered the following injuries from the force used against him by Officers Rivard, Berloni, Field, and Pacileo: bruises and swelling to his face, pain in his neck, ribs and lower back, nerve damage to both of his wrists, a gash on his right shin, and emotional anguish. Id. ¶¶ 36-43. Mr. Velez made multiple requests for treatment for the gash in his leg. Id. at 9 ¶¶ 44-48.

         On March 8, 2016, a nurse examined the injury to Mr. Velez's right shin, cleaned it and applied a dressing to it. A doctor prescribed an antibiotic. Id. ¶¶ 47-48. On March 23, 2016, a doctor examined Mr. Velez's leg injury, re-prescribed an antibiotic and ordered an x-ray. Id. ¶¶ 50-51. Mr. Velez filed requests and grievances regarding the use of force by Officers Rivard, Berloni, Field, and Pacileo, and Lieutenant Harris. Id. ¶¶ 49, 52.

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 1915A(b), a court must review prisoner civil complaints against governmental actors and “dismiss . . . any portion of [a] complaint [that] is frivolous, malicious, or 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.” Id. Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         Although detailed allegations are not required, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when a 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) (internal quotation marks and citations omitted). A complaint that includes only “‘labels and conclusions,' ‘a formulaic recitation of the elements of a cause of action' or ‘naked assertion[s]' devoid of ‘further factual enhancement, '” does not meet the facial plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts still have an obligation to interpret “a pro se complaint liberally, ” the complaint must still include sufficient factual allegations to meet the standard of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).

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