United States District Court, D. Connecticut
INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. §
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
Edwin Rivera, is a prisoner in the custody of the Federal
Bureau of Prisons at Federal Correctional Institution (FCI)
Allenwood Low. He has filed a complaint pro se and
in forma pauperis against two federal prison
officials for the use of excessive force and deliberate
indifference to serious medical needs. Based upon the
Court's initial review, the Court concludes that
Rivera's claims may proceed and that the complaint should
be served on defendants.
brings this action based on events that took place while he
was imprisoned at FCI Danbury. Rivera alleges that on August
5, 2016, defendants SIS Technician J. Tiernan and Lieutenant
North escorted him to the work gate. Doc. #1 at
Tiernan was located at his side, and North was behind him.
Ibid. Rivera dropped some mailing labels,
headphones, and an MP3 player and then tried to pick the
items up, at which point Tiernan allegedly “proceeded
to take [Rivera] to the ground.” Ibid. While
Rivera lay face-down on the ground, Tiernan put Rivera's
left arm behind his back and put his knee on Rivera's
back. Ibid. Rivera felt an impact on the right side
of his face while he lay on the ground, and he believes that
“the impact came from Tiernan punching [him] in the
face.” Ibid. Rivera further alleges that
although he communicated that he could not breathe, Tiernan
began to choke him with his right hand. Ibid. Rivera
turned his head to the left to avoid being choked.
claims that he heard an unidentified correctional officer ask
an unidentified listener to “let me take his watch off
his arm because it's [the arm] turning blue.”
Ibid. Rivera further alleges that he was kicked in
the back, at or around his ribs, slammed onto the ground, and
punched repeatedly on the right side of his jaw by unknown
persons. Ibid. Rivera additionally claims that at an
unspecified time following the events at issue, unidentified
officers stated that they believed Rivera had swallowed
something. Id. at 5. But Rivera denies having
swallowed anything, ibid., and further alleges that
during the events in question no officer instructed him to
spit anything out, id. at 4. He claims that x-ray
results from an examination that followed the event show that
he had not swallowed anything. Id. at 5.
alleges that the correctional officers who were present
during the events at issue were aware that five days before
he had undergone surgery related to cancer treatment on his
left arm and upper chest. Ibid. As a result of the
correctional officers' actions, he suffered injuries
including a swollen jaw, bruising under his left arm, and
swelling on the left side of his ribs. Id. at 4.
caption of the complaint names Tiernan and North as
defendants. Rivera seeks $25 million in compensatory
damages and punitive damages.
to 28 U.S.C. § 1915A(a), the Court must review a
prisoner's civil complaint against a governmental entity
or governmental actors and “identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if
the complaint-(1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such
relief.” If the prisoner is proceeding pro se,
the allegations of the complaint must be read liberally to
raise the strongest arguments that they suggest. See
Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010).
recent years, the Supreme Court has set forth a threshold
“plausibility” pleading standard for courts to
evaluate the adequacy of allegations in federal court
complaints. A complaint must allege enough facts-as distinct
from legal conclusions-that give rise to plausible grounds
for relief. See, e.g., Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Notwithstanding the
rule of liberal interpretation of a pro se
complaint, a pro se complaint may not survive
dismissal if its factual allegations do not meet the basic
plausibility standard. See, e.g., Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015).
brings this action against the federal officer defendants in
their individual capacities pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). In Bivens, the Supreme Court
recognized an implied right of action for damages against
federal officers who have violated a person's
constitutional rights. See McGowan v. United States,
825 F.3d 118, 123 (2d Cir. 2016) (per curiam).
Eighth Amendment prohibits the use of excessive force against
a prison inmate. “Although not every malevolent touch
by a prison guard gives rise to a federal cause of action,
inmates have the right to be free from the unnecessary and
wanton infliction of pain at the hands of prison
officials.” Hogan v. Fischer, 738 F.3d 509,
515 (2d Cir. 2013) (internal quotations and citations
omitted). In order to state an Eighth Amendment claim for the
use of excessive force, an inmate must allege a sufficiently
serious use of force that has been inflicted for malicious or
sadistic reasons rather than in a good faith effort to
maintain or restore discipline. Ibid.; Harris v.
Miller, 818 F.3d 49, 63 (2d Cir. 2016). The Court
assumes for present purposes (and without prejudice to
defendants' right to contest the issue at a later time)
that Bivens liability extends to an Eighth Amendment
claim for the use of excessive force. See Ziglar v.
Abbasi, 137 S.Ct. 1843, 1860 (2017); Akande v.
Philips, 2018 WL 3425009, at *9 (W.D.N.Y. 2018).
alleges facts suggesting that Tiernan attacked and injured
him without any legitimate justification and that North is
potentially liable because he could have intervened to
prevent the attack. See Figueroa v. Mazza, 825 F.3d
89, 106 (2d Cir. 2016) (noting that an “officer is
under a duty to intercede and prevent fellow officers from
subjecting a citizen to excessive force, and may be held
liable for his failure to do so if he observes the use of
force and has sufficient time to act to prevent it”).