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Febus v. Somody

United States District Court, D. Connecticut

April 22, 2019

FORTUNATO K. FEBUS, Plaintiff,
v.
OFFICER ROBERT SOMODY et al., Defendants.

          INITIAL REVIEW ORDER

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE

         Plaintiff Fortunato K. Febus was a prisoner in the custody of a correctional facility in New York when he filed this complaint pro se and in forma pauperis under 42 U.S.C. § 1983. Febus alleges in principal part that police officers used excessive force on him, falsely arrested him, and were deliberately indifferent to his safety and medical care. For the reasons stated below, I will allow some of Febus's claims to proceed and for his complaint to be served on some of the named defendants.

         Background

         The following allegations from Febus's complaint are assumed to be true solely for purposes of this initial ruling. On July 3, 2016, at approximately 10:20 p.m., plaintiff Fortunato Febus and his attorney were at the Crabshell Restaurant and Bar in Stamford, Connecticut. Doc. #1 at 2. Defendant Officer Robert Somody, who was wearing his police uniform, approached Febus and asked him whether he was Mr. Febus. Ibid. Febus acknowledged his identity, and Somody directed Febus to follow him. Ibid. Febus became confused. Id. at 2-3. Somody began to ask Febus questions, but Febus could not hear him due to the volume of the music playing in the restaurant. Id. at 3. Febus requested that Somody speak to his attorney who was purchasing food in another part of the restaurant at the time. Ibid.

         Somody then grabbed Febus by the shirt, pulled him to his feet and directed him to the front of the restaurant. Ibid. Febus noticed his attorney, pointed to him, and requested that Somody speak to him. Ibid.

         Somody then grabbed Febus's arm and tried to twist it behind his back. Ibid. Febus pulled his arm away and asked why he was being subjected to “this kind of treatment.” Ibid. Somody did not respond. Instead, he grabbed Febus's arm, twisted it behind his back again, and used his foot to sweep Febus off his feet and onto the ground. Ibid. Febus broke five of his ribs during his fall to the ground. Ibid. Somody fell on top of him, pinned him to the ground, and put him in a chokehold. Ibid.

         Defendant Officer Joseph Rainone then arrived at the scene to assist Somody. Id. While Somody was choking Febus, Rainone grabbed Febus's arm, which was pinned under his body, and twisted it. Ibid. Febus complained that he could not breathe. Ibid. Rainone and Somody then re-positioned themselves and grabbed both of Febus's arms and pulled them over his head in a twisting motion. Ibid. In doing so, they tore both of his rotator cuffs. Ibid.

         Seven police cars full of Stamford officers arrived at the scene, and the officers began to punch and kick Febus and bash his head into the ground to subdue him. Id. at 3-4. This use of force caused him to suffer a concussion; ear, neck, and back injuries; a hernia; difficulty breathing; and torn cartilage in his right knee. Id. at 4.

         After being handcuffed, Febus was placed in a police car and transported to the Stamford Police Department. Ibid. Upon his arrival at the station, it became clear to police officials that Febus required immediate medical attention. Ibid. Officials arranged for an ambulance to transport him to Stamford Hospital for treatment. Ibid.

         At a hearing on July 5, 2016, a judge found probable cause to arrest Febus on charges of breach of peace in the second degree and interference with a police officer. Ibid. An officer from the Stamford Police Department attended the hearing but did not inform the judge that Febus was in the custody of the Stamford Police Department and confined at Stamford Hospital for treatment of his injuries. Ibid.

         On July 6, 2016, an officer from the Stamford Police Department spoke to Febus's doctors to convince them that Febus needed to be returned to the police station. Ibid. The doctors indicated that his injuries precluded his release from the hospital. Ibid.

         But then on July 7, 2016, Sergeant Doe spoke to Febus's doctors. Ibid. Sergeant Doe removed Febus from the hospital against the orders of the doctors and transported him back to the police station. Ibid. Febus's injuries prevented him from completing intake at the police station, and before he was finished being processed at the station, the officers had to return him to the hospital to receive medication to manage his pain. Id. at 4-5.

         On July 8, 2016, Febus appeared in Connecticut Superior Court and was arraigned on charges of breach of peace and interfering with an officer. Id. at 5. Febus states that he pleaded guilty to the criminal offenses with which he had been charged, and a judge sentenced him to an unconditional discharge. Ibid.

         Discussion

          Pursuant to 28 U.S.C. § 1915A, 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).[1]

         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 ...


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