Pena v. Counselor Supervisor Aldi

          INITIAL REVIEW ORDER

          Kari A. Dooley United States District Judge

         Preliminary Statement

         The plaintiff, James L. Pena (“Pena”), is currently confined at Corrigan-Radgowski Correctional Institution (“Corrigan”). He has filed a civil rights complaint against Counselor Supervisor Aldi, Unit Manager Tammaro, Captain Kelly, Lieutenant Bragdon, Correctional Officers Nichols, John Doe #1 and John Doe #2 and Mental Health Worker J. Baennan. He alleges that during his confinement at Corrigan from January to November 2018, the defendants were deliberately indifferent to his safety and health and used excessive force against him. 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)). Although courts still have an obligation to interpret “a pro se complaint 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

         In January 2018, Pena, then a pretrial detainee, was confined in B-Pod, a Security Risk Group unit at Corrigan. See Compl. at 3 ¶ 1 & at 4 ¶ 7. On January 4, 2018, Pena sent a request to Unit Manager Tammaro seeking to be transferred from B-Pod to general population or to protective custody because he felt his safety was at risk. See Id. He contended that his continued presence in the Security Risk Group unit might result in harm to his health or jeopardize his safety because he was no longer a member of the Bloods gang and because of the nature of the criminal charges, sexual assault in the second degree, pending against him. See Id. & at 8 ¶¶ 33-34. He claimed that the Bloods gang had targeted him for assault or serious harm. See Id. On January 8, 2018, Unit Manager Tammaro responded that he was tired of talking about the issue and instructed Pena to contact Counselor Supervisor Aldi. See Id. at 4 ¶ 8.

         Between January 6, 2018 and January 15, 2018, Pena spoke to Counselor Supervisor Aldi in person and sent him a written request documenting his concerns about remaining in the Security Risk Group unit and seeking to be transferred to general population or to protective custody. See Id. ¶ 11. Counselor Supervisor Aldi sent Pena a written response to his requests indicating that he would remain in the Security Risk Group unit. See id.

         Pena filed a grievance regarding the responses of Counselor Supervisor Aldi and Unit Manager Tammaro to his concerns for his safety and his requests to be transferred to general population or to protective custody. See Id. ¶ 12. He did not receive a response to his grievance. See Id. at 4-5 ¶ 12.

         “[A]round January-16-2018/February, ” Counselor Supervisor Aldi toured of B-Pod. See Id. at 5 ¶ 16. Pena informed Aldi that his presence in B-Pod could result in a life-threatening injury and requested to be placed in protective custody. See Id. Counselor Supervisor Aldi indicated that Pena would be staying in B-Pod. See Id. Pena claims that Counselor Supervisor Aldi was aware that other correctional officers had treated him “cruelly” due to the fact that he had been charged with sexual assault. See Id. ¶ 18.

         On June 8, 2018, officials sent Pena to the restrictive housing unit because he had threatened a correctional officer. See Id. ¶ 19. Upon his release from the restrictive housing unit, prison officials placed Pena in E-Pod, a Security Risk Group unit. See id. On June 29, 2018, Pena sent a written request to Captain Kelly claiming that his continued presence in the Security Risk Group unit might result in harm to his health or jeopardize his safety because the gang of which he was formerly a member had targeted him for assault or serious harm and because of the nature of the criminal charge, sexual assault in the second degree, pending against him. See id. at 5-6 ¶ 19. Captain Kelly responded that he would visit Pena and mentioned something about Counselor Supervisor Aldi telling him “unless [Pena] g[a]ve him a name.” See Id. at 6 ¶ 19.

         On November 14, 2018, another inmate, who was a member of a gang, assaulted Pena in the Day Room in E-Pod. See Id. ¶ 20. The inmate stated that he had assaulted Pena because Pena was a non-gang member with a rape charge. See Id. The inmate commented that he was also “being set up by John Aldi” and that Pena “couldn't live [in the unit] with a sex charge.” See Id. ¶ 21.

         Officers Nichols, John Doe #1 and John Doe #2 responded to the scene of the altercation and secured Pena against the wall. See Id. ¶ 22. Pena was compliant with all orders given by Officers Nichols, John Doe #1 and John Doe #2. See Id. At some point, Officers Nichols, John Doe #1 and John Doe #2 slammed Pena to the floor. See Id. As Pena lay pinned to the floor, Officer Nichols secured his left arm by pulling it behind his back and “beyond its limitation.” See Id. Officer Nichols then twisted Pena's wrist, punched him in the ribs and called him a rapist. See id.

         Officer John Doe #1 put his knee into Pena's lower back and used unnecessary force to press Pena's face to the ground. See Id. at 7 ¶ 23. Officer John Doe #2 secured Pena's right arm by pulling it behind his back and “beyond it[s] limitation, ” twisted Pena's wrist and punched him in the ribs. See Id. ¶ 24. Lieutenant Bragdon was present at the scene and supervised the use of force by Officers Nichols, John Doe #1 and John Doe #2. See Id. ¶ 25. After Officers Nichols, John Doe #1 and John Doe #2 had restrained Pena and placed him in handcuffs, Lieutenant Bragdon sprayed Pena in the face with mace/pepper spray. See Id. at 4 ¶ 8. When Pena questioned why Lieutenant Bragdon had sprayed him with mace and stated that he could not breathe, Lieutenant Bragdon told Pena to stop complaining and threatened to spray him again. See Id. ¶¶ 26, 28.

         A medical staff member treated Pena for a swollen and bruised face, cuts on the side of his nose and lip, a busted lip, a black eye and bruises and cuts on his wrists. See Id. at 8 ¶ 30. Prison officials placed Pena in the restrictive housing unit and issued him disciplinary report for fighting. See Id. ¶ 31.

         On November 15, 2018, Pena filed a request and a grievance regarding the assault. See Id. ¶ 32. On November 16, 2018, Pena met with Captain Kelly and stated that the incident involving his assault could have been avoided had prison officials placed him in protective custody at an earlier date. See Id. ¶ 33. Pena asked to be placed in protective custody. See Id. Captain Kelly indicated that he would help Pena, if Pena gave him information on the Bloods gang. See Id. Pena stated that he was no longer a member of the Bloods gang and that after his arrest, members of the gang had targeted him for assault or serious harm. See Id. ¶ 34. Captain Kelly indicated that he had reviewed the video footage of the incident involving the assault and that it looked like Pena had been set up. See Id. ¶ 35. He asked Pena who had set him up and Pena stated that he did not know. See Id. Captain Kelly indicated that he would “see what he [could] do for [Pena].” See id.

         Pena submitted additional requests and grievances claiming that his continued presence in the Security Risk Group unit would result in a serious harm to his health, Officers Nichols, John Doe #1 and John Doe #2 had used excessive force against him and Counselor Supervisor Aldi and Unit Manager Tammaro had failed to take action in response to his complaints of threats to his safety prior to his assault by a gang member. See Id. ¶ 36. He requested to be placed in protective custody. See Id. He submitted a separate request to the mental health unit indicating that he was experiencing emotional distress and would like to be seen. See Id. at 9 ¶ 37. A mental health worker by the name of J. Baennan responded to Pena's request and indicated that the mental health department could not “assist in this issue” and suggested that if he was concerned for his safety, he should write to a custody official to request that he be placed in protective custody. See Id. ¶ 38.

         On November 26, 2018, pursuant to Pena's plea of guilty to the charge of sexual assault in the second degree, a Superior Court Judge sentenced Pena to ten years of imprisonment, execution suspended after five years of imprisonment and followed by ten years of probation.^[1]On that same date, Captain Kelly informed Pena that he would be transferred to MacDougall-Walker Correctional Institution (“MacDougall-Walker”) and placed in phase two of the Security Risk Group program. See Id. ¶ 40. Pena questioned why prison officials were transferring him to a Security Risk Group unit with more restrictive conditions of confinement. See Id. Captain Kelly indicated that Pena was complaining too much and attempting to “get some of his good friend[s] in trouble.” See id.

         On November 29, 2018, prison officials at Corrigan transferred Pena to MacDougall-Walker and placed him the Security Risk Group unit on “N.I.C. status.” See Id. ¶ 42. Mental health staff members at MacDougall-Walker examined Pena and diagnosed him as suffering from post-traumatic stress disorder. See Id. ¶ 43.

         Discussion

         Pena asserts claims of excessive force, failure to protect him from harm and deliberate indifference/cruel and unusual punishment under the Due Process Clause of the Fifth and Fourteenth Amendments. The allegations are also construed as asserting a First Amendment retaliation claim against Captain Kelly. Pena asserts state law claims of ...