Shabazz v. Semple

          INITIAL REVIEW ORDER

          Kari A. Dooley United States District Judge.

         Preliminary Statement

         The plaintiff, Shaka Shabbaz (“Shabazz”), recently updated his address to reflect that he is no longer at a halfway house and is currently confined at the Osborn Correctional Institution. He initiated this action by filing a civil rights complaint against Acting District Two Lead Warden Jose Feliciano, District Two Lead Warden Peter Murphy, Commissioner Scott Semple, Deputy Commissioners Cheryl Cepelak and Monica Ellison, Deputy Warden Robert Martin, Lieutenant Limmer, Correctional Officer Judy and Ms. Surfus. See Compl., ECF No. 1, at 1-5. Shabazz challenges the use of force by Lieutenant Limmer and Officer Judy on February 21, 2015, and the failure of Ms. Surfus to provide him with appropriate due process prior to and during a disciplinary hearing held on February 26, 2015. For the reasons set forth below, the complaint is dismissed in part.

         Standard of Review

         Pursuant to 28 U.S.C. § 1915A(b), the court must review prisoner civil complaints against governmental actors and “dismiss ... any portion of [a] complaint [that] is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or that “seeks monetary relief from a defendant who is immune from such relief.” Id. Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         Although detailed allegations are not required, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). A complaint that includes only “‘labels and conclusions,' ‘a formulaic recitation of the elements of a cause of action' or ‘naked assertion[s]' devoid of ‘further factual enhancement, '” does not meet the facial plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). The Court must interpret the factual allegations of a pro se complaint “to raise the strongest arguments that they suggest.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). And although a pro se complaint must be construed liberally, the complaint must include sufficient factual allegations to meet the standard of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).

         Allegations

         On February 21, 2015, in C-Unit at Corrigan Correctional Institution (“Corrigan”), Shabazz had an argument with Correctional Officer Judy. See Compl. at 3 ¶ 4 & at 7 ¶16. In connection with this argument, another correctional officer called a “signal 11 code” to summon other officers and officials to C-Unit. See Id. at 7 ¶ 16 & Exs. A-1 and B-1 at 28-31.

         Lieutenant Limmer responded to the code and ordered Shabazz to turn and face the wall, place his hands on the wall and not to move. See Id. at 7 ¶ 16. At the same time, Officer Judy repeatedly ordered Shabazz to put his hands behind his back. See Id. at 8 ¶ 20. Because Shabazz believed that he was required to follow the last order given to him, he removed his hands from the wall and placed them behind his back. See Id. at 9 ¶¶ 22-23.

         Lieutenant Limmer then stated: “Now I can hurt you, You dumb N . . .” and sprayed mace into Shabazz's eyes and face. See Id. ¶ 23. The mace burned Shabazz's face and made it difficult for him to breath. See Id. Officer Judy then pulled Shabazz's arm off of the wall in a jerking motion, place his arm behind his back and stated: “That's what you get when you F. . . with me.” See id.

         Lieutenant Limmer ordered officers to escort Shabazz to the medical unit. See Id. at 10 ¶ 25. On the way, officers attempted to have Shabazz rinse the residue of mace from his head and face by putting his head in the shower. See Id. ¶ 27. Shabazz refused and requested to be “decontaminated with a solution” specifically made to rinse off the effects of mace from an individual's skin and eyes. See id.

         Upon his arrival in the medical department, Shabazz asked Nurse Barnes to use the solution to “decontaminate[]” him from the effects of mace. See Id. ¶ 28. Nurse Barnes informed Shabazz that the solution was not available because the Department of Correction did not stock the solution in the medical department. See Id. Nurse Barnes indicated that Shabazz could rinse the residue of mace from his head and face by placing his head under the faucet of the sink in the medical unit. See Id. Shabazz refused to follow this suggestion because he knew that rinsing with water would only “rekindle” the effects of the mace on his skin. See id.

         Thereafter, Shabazz experienced three days and three nights of burning skin, pain, loss of sleep and blurry vision. See Id. at 11 ¶ 29. The blurry vision caused him to suffer migraine headaches, nausea, vomiting and loss of appetite and to avoid recreation for four months. See Id. During the four-month period after the incident, Shabazz experienced pain around his eyes, mood changes, depression, a fear of dying, anxiety and emotional trauma. See Id. at 20 ¶ 54.

         On February 25, 2015, after reviewing the videotapes of the February 21, 2015 incident and the incident report, Deputy Warden Martin (Martin) recommended further review of the force used against Shabazz by Lieutenant Limmer. See Id. at 12 ¶ 32 & at 39. On February 26, 2015, Warden Santiago concurred with the Martin's assessment and recommended that an investigation be undertaken regarding the use of force by Lieutenant Limmer. See Id. at 39. On March 4, 2015, Acting District Two Lead Warden Jose Feliciano (Feliciano) viewed the videotapes of the incident with Lieutenant Limmer, Martin and Captain Shebenas. See Id. at 39. Feliciano concluded that the use of force by Lieutenant Limmer was necessary to maintain proper discipline and to prevent escalation of the incident. See Id. at 12 ¶ 33.

         On March 20, 2015, Shabazz filed a grievance claiming that Lieutenant Limmer had used excessive and unjustified force against him. See Id. at 44. On March 30, 2015, Martin denied the grievance. See Id. at 13 ¶ 34 & at 44. On April 2, 2015, Shabazz appealed Martin's decision. See Id. ¶ 35. On June 1, 2015, without reviewing the videotapes of the use of force, District Two Lead Warden Peter Murphy denied the appeal. See Id. at 13-14 ¶¶ 35-37 & at 48.

         Lieutenant Limmer issued Shabazz a disciplinary report in connection with the incident that occurred on February 21, 2015. See Id. at 15 ¶ 43. The Report documenting the incident involving the use of force by Lieutenant Limmer reflects that Shabazz received a Class A disciplinary report for flagrant disobedience and a Class A Disciplinary Report for threats on staff. See Id. at 31. Defendant Ms. Surfus was Shabazz's advocate in connection with the issuance of at least one of the disciplinary reports. See Id. Shabazz informed Ms. Surfus that the video footage of the incident would corroborate his behavior and would demonstrate that he was not guilty of the disciplinary violation with which he had been charged. See Id. ¶¶ 43-44. Shabazz asked Ms. Surfus to procure a copy of the video footage of the incident, to review the footage, to review all incident reports prepared in connection with the incident, to prepare her own investigation report, and to provide him with a copy of her report before the hearing. See Id. at 15-16 ¶¶ 44-45. Ms. Surfus never met with Shabazz a second time and did not attend the disciplinary hearing or submit the video footage of the incident in support of Shabazz's defense. See id. at 16-17 ¶¶ 46-48. In the report that she prepared in advance of the hearing, she recommended that Shabazz be found guilty. See Id. at 18 ¶ 48 & at 52.

         Shabazz participated in a disciplinary hearing on February 26, 2015. See Id. at 50. The disciplinary hearing officer found Shabazz guilty. See Id. at 18 ¶ 51. Shabazz appealed the disciplinary finding. See Id. ¶ 53.

         Discussion

         Shabazz sues the defendants in their individual capacities only and seeks monetary relief. He asserts claims under the Eighth and Fourteenth Amendments of the United States Constitution. In addition, he contends that the defendants violated his rights under Article First, § 9 of the Connecticut Constitution and engaged in conduct that constituted the torts of intentional infliction of emotional distress and assault and battery.

         Eighth Amendment Excessive Force - Lieutenant Limmer and Officer Judy

         Shabazz alleges that he was attempting to comply with the orders given to him by Lieutenant Limmer and Officer Judy when Lieutenant Limmer sprayed him in the face and eyes with mace. Officer Judy then jerked Shabazz's left hand off the wall.

         In Hudson v. McMillian, 503 U.S. 1 (1992), the Supreme Court established the minimum standard to be applied in determining whether force by a correctional officer against a sentenced inmate states a constitutional claim under the Eighth Amendment in contexts other than prison disturbances. When an inmate claims that excessive force has been used against him by a prison official, he has the burden of establishing ...