United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION TO DISMISS IN PART
AND ORDER OF PARTIAL DISMISSAL
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
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,
“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
Standard of Review
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
All Official Capacity ...