Al-Bukhari v. Department of Correction

          RULING ON DEFENDANTS' MOTION TO DISMISS IN PART AND ORDER OF PARTIAL DISMISSAL

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE.

         Ja-Qure Al-Bukhari, also known as Jerome Riddick, currently confined at MacDougall-Walker Correctional Institution, commenced this civil rights action pro se. The Court has consolidated this case with Al-Bukhari v. Department of Correction, et al., No. 3:16-cv-353 (SRU); Al-Bukhari v. Semple, et al., No. 3:16-cv-1428 (SRU), and Al-Bukhari v. Semple, et al., No. 3:17-cv-134 (SRU). Doc. # 123. On November 3, 2017, Al-Bukhari filed a second amended complaint including all of the claims from the four consolidated cases that he intends to pursue. Doc. # 139 (hereinafter, the “Second Am. Compl.”). The complaint includes forty-three defendants: The Department of Correction, Scott Semple, Scott Erfe, Anne Cournoyer, William Mulligan, William Faneuff, Derrick Molden, Jesse Johnson, Marc Congelos, Christopher Porylo, Alphonso Lindsey, Daniel Phillips, Ryan Baron, Jeremie St. Pierre, James Vassar, Josh Whitted, Michael Pereira, Kyle Boulerice, Ryan Day, Paul Balatka, Nancy Hill, Kristen Carabine, Ellen Durko, Barbara Savoie, Lisa Alvarez, “Tuttle”, “Guimond”, “Bujnicki”, “Bradley”, “Wemmel”, “Schmidt”, “Bogan”, “Thorpe”, “McCarthy”, “Loney”, one Jane Doe and seven John Does. The defendants have collectively filed a motion to dismiss the case in part. Doc. # 140. For the reasons that follow, the defendants' motion is granted in part.

         I. Standard of Review

         To withstand a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. 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.” Id. The plausibility standard is not a probability requirement. Id. Moreover, legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”, are not entitled to a presumption of truth. Id. Nevertheless, when reviewing a motion to dismiss, the court must accept well-pleaded factual allegations as true and “draw[] all reasonable inferences in the non-movant's favor”. Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012).

         II. Facts^[1]

         Al-Bukhari has been diagnosed with several mental health disorders including post-traumatic stress disorder, bipolar disorder, attention deficit hyperactivity disorder, antisocial personality disorder with narcissistic and borderline traits, and paranoia manifested by oppositional deficit disorder. He has suicidal ideations and engages in acts of self-harm. Al-Bukhari also has several medical disorders including asthma, sciatica, a left-hip condition, and degenerative discs in his neck and degenerative joint disease in his shoulders. These medical conditions cause Al-Bukhari to experience pain, muscle spasms, numbness, and tingling.

         On November 17, 2015, defendant Johnson placed Al-Bukhari in disciplinary segregation. On November 19, 2015, Johnson ordered that Al-Bukhari be placed in in-cell restraints. Defendants Johnson, Phillips, St. Pierre, Baron, and Vassar applied the restraints. When Al-Bukhari resisted, Johnson sprayed him with a chemical agent and the five defendants kicked and punched Al-Bukhari and used force in restraining him. They did not properly decontaminate him. When Al-Bukhari threatened self-harm, Johnson ordered him placed in four-point restraints. After the four-point restraints were applied, Al-Bukhari began banging his head on the back of the bunk. Nothing was done to address this self-harm. Defendant Erfe was generally aware of the defendants' actions.

         On December 13, 2015, defendant Congelos excessively sprayed Al-Bukhari with a chemical agent while defendants Hill and Carabine were present. Al-Bukhari was then placed in in-cell restraints on behavior observation status. Defendants Loney and Day and Officer Gonzalez applied the restraints, which consisted of handcuffs, shackles, and a tether chain, excessively tightly. When Congelos told Al-Bukhari that he would be placed in in-cell restraints, Al-Bukhari banged his head on the cell door until it bled. Correctional staff witnessed this action but did not report it. Al-Bukhari continued banging his head for the three hours he remained in in-cell restraints. Defendants Semple, Cournoyer, Mulligan, and Carabine possessed Al-Bukhari's medical and mental health records, and so they were aware of his conditions, but they failed to prevent the self-harm.

         On March 9, 2016, defendants Porylo and Guimond told Al-Bukhari that he would be placed in in-cell restraints for covering his cell door window. Al-Bukhari was naked at the time. When he refused to get dressed, Porylo sprayed a chemical agent on his genitalia and buttocks. Al-Bukhari submitted to handcuffs so he could be decontaminated. Porylo and several John Doe defendants subdued Al-Bukhari and dressed him in underwear. En route to the medical screening room, Al-Bukhari slipped, and John Doe 1, John Doe 2, and John Doe 3 slammed Al-Bukhari to the ground and Porylo sprayed him with a chemical agent. Porylo and Carabine refused to provide a shower for proper decontamination. When Al-Bukhari threatened self-harm, Porylo ordered him placed in four-point restraints. Al-Bukhari remained in four-point restraints for several hours. During that time, he experienced pain and burning from the chemical agent. He was released to in-cell restraints where he remained for several days.

         On March 10, 2016, Al-Bukhari told defendants Wemmel, Schmidt, McCarthy, and Bogan that he had defecated on himself while restrained. They denied his request to clean himself and did not report the incident. Defendants Bradley and Guimond also refused to permit Al-Bukhari to clean himself. In response, he began banging his head against the cell door. They did nothing to stop the self-harm until a social worker present that day stated that he had to be returned to four-point restraints. Al-Bukhari was confined in four-point and in-cell restraints for thirty-six hours. Semple, Cournoyer, and Mulligan were aware of Al-Bukhari's medical and mental health conditions but permitted use of high concentrations of the chemical agent.

         On January 4, 2017, defendant Lindsey sprayed Al-Bukhari with a chemical agent. Although defendant Balatka knew Al-Bukhari was asthmatic, he approved use of the chemical agent. Lindsey ordered Al-Bukhari placed in in-cell restraints. Al-Bukhari told Lindsey that he would bang his head with the restraints and against the cell door and walls, but Lindsey did nothing. Al-Bukhari banged his head until it bled.

         On January 5, 2017, defendants Tuttle and Bujnicki ordered that Al-Bukhari be continued on in-cell restraints. During a restraint check, they sprayed him with a chemical agent. Al-Bukhari complained to defendant Durko that the restraints were causing muscle spasms, pain and numbness, but she did nothing. Later in the day, defendants Congelos and Porylo and the Doe defendants entered Al-Bukhari's cell while he was asleep, and while Porylo and the Doe defendants held Al-Bukhari down, one Doe defendant pulled painfully on Al-Bukhari's genitalia and asked Al-Bukhari “you still want to assault staff asshole?” Al-Bukhari also alleges that, sometime over the next two weeks, Congelos loudly proclaimed that Al-Bukhari was a “snitch” and made taunting comments regarding Al-Bukhari's genitalia. Defendants Lindsey, Porylo, Congelos, Balatka, Durko, Tuttle, and Bujnicki did not prevent their fellow officers from assaulting Al-Bukhari.

         III. Discussion

         Al-Bukhari includes eight counts in his second amended complaint: Count One alleges that, by their use of restraints and chemical agents, the defendants have breached a 2014 agreement (the “2014 Settlement Agreement”) that settled a prior case, Riddick v. Department of Correction, No. 13-cv-656 (SRU), and the breach of which is the subject of a (recently reopened) parallel lawsuit, Riddick v. Semple, No. 3:16-cv-1769 (SRU); Count Two alleges a breach of the covenant of good faith and fair dealing associated with the 2014 Settlement Agreement; Count Three re-alleges breach of the 2014 Settlement Agreement regarding use of restraints and chemical agents; Count Four claims that promissory estoppel applies to the defendants' breaches of the 2014 Settlement Agreement; Count Five alleges use of excessive force in violation of the Eighth Amendment; Count Six alleges violation of Al-Bukhari's due process rights; Count Seven alleges assault and battery; and Count Eight alleges intentional infliction of emotional distress.

         The defendants have moved for partial dismissal of the second amended complaint, arguing that all claims brought under 42 U.S.C. § 1983 against the Department of Correction and all other defendants in their official capacities are barred by the Eleventh Amendment, that the claims in Count Three duplicate those in Count One; (3) the allegations in Count Six, that placement in restraints violates the Fourteenth Amendment, fail to state a claim for which relief may be granted; (4) the allegations in Court Four, that the defendants are liable under a theory of promissory estoppel, fail to state a claim for which relief may be granted; and (5) the allegations in Count Eight, that the defendants intentionally inflicted emotional distress on Al-Bukhari, fail to state a claim for which relief may be granted.

         A. All Official Capacity ...