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Rivera v. Tiernan

United States District Court, D. Connecticut

January 3, 2019

EDWIN RIVERA, Plaintiff,
v.
TIERNAN and NORTH, Defendants.

          INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. § 1915A

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Background

         Rivera 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 4.[1] 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. Ibid.

         Rivera 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.

         Rivera 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.

         The caption of the complaint names Tiernan and North as defendants.[2] Rivera seeks $25 million in compensatory damages and punitive damages.

         Discussion

         Pursuant 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).

         In 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).

         Excessive force

         Rivera 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).

         The 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).

         Rivera 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”). ...


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