Gulley v. Ogando

          INITIAL REVIEW ORDER

          Stefan R. Underhill United States District Judge

         The plaintiff, Chaz Gulley (“Gulley”), is incarcerated at Bridgeport Correctional Center. He has filed a civil rights action against Captain Ogando, Warden Mulligan, Deputy Warden Roach, Lieutenant Delpeschio, Correctional Officers Harris, Annear, Baez, Sullivan, Brown and Brito, Nurse Kris, John Doe 1 and John Doe 2. For the reasons set forth below, the complaint is dismissed in part.

         I. Standard of Review

         Under section 1915A of Title 28 of the United States Code, I must review prisoner civil complaints and dismiss any portion of the 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. 28 U.S.C. § 1915A. Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and grounds upon which they are based and to demonstrate a plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         II. Facts

         In early October 2018, Correctional Officer Annear was involved in a “confrontation with [Gulley] during which he retaliated against Gulley. See Compl. at 4 ¶ 13. After the incident, Lieutenant Concepcion allegedly removed Officer Annear from the unit and assigned another officer to the unit in place of Officer Annear. See Id. Gulley asked Deputy Warden Roach to preserve the videotape of the incident involving himself and Officer Annear. See Id. Deputy Warden Roach and Warden Mulligan informed Gulley that they would investigate the incident and keep Officer Annear separated from him. See Id. ¶ 14.

         On November 28, 2018, Gulley was housed in B-2 Unit in the Walker Building at MacDougall-Walker Correctional Institution. See Id. at 3 ¶ 7. Gulley covered the window in his cell door to protest the treatment that he had received during his confinement in the security risk group program. See Id. In response, officers escorted him to the restrictive housing unit. See Id. ¶ 8. On November 29, 2018, a prison official informed Gulley that he would not be transferred to Northern Correctional Institution until he completed fourteen days in punitive segregation. See Id. ¶ 9.

         On November 30, 2018, Gulley covered the window of his cell door in the restrictive housing unit because Captain Ogando had informed him that he would not be able to make a legal telephone call to Hope Metcalf that day. See Id. at 4 ¶ 15. At that time, Gulley was confined with in-cell restraints. See Id. ¶ 16. In response to Gulley's conduct in covering the window in his cell door, Captain Ogando ordered officers to put a black box over his wrist restraints. See Id. Because Gulley was involved in litigation challenging the use of restraints on inmates as punishment, he attempted to stand up in protest as the officers put the black box over his wrist restraints. See Id. at 5 ¶ 17. As a result of Gulley's resistance to the use of the black box, Captain Ogando ordered officers to place Gulley on stationary, four-point restraints. See Id. ¶ 18.

         In applying the four-point restraints, the officers deliberately left the restraint on his right arm loose. See Id. ¶ 19. Shortly, after the restraints had been applied and the officers had left Gulley's cell, he slipped out of the restraint on his right arm. See Id. ¶¶ 20-21. Correctional Officers Baez, Annear and Harris entered Gulley's cell and punched and kicked him in the face, back and neck as he lay in a contorted position off the bunk. See Id. ¶ 22. Correctional Officer Brito was in charge of videotaping the incident, but failed to turn on the videorecorder. See Id. Captain Ogando and Lieutenant Delpeschio sprayed Gulley in the face and body with a chemical agent. See Id. at 6 ¶ 23.

         Officers escorted Gulley to the shower to be decontaminated from the chemical agent residue. See Id. ¶ 24. Officers escorted Gulley back to the same cell and placed him in four-point restraints. See Id. ¶ 25. No. one decontaminated the cell from the chemical agent residue before placing Gulley back in it. See id.

         During the re-application of restraints, Correctional Officer Sullivan slammed his closed fist into Gulley's shoulder repeatedly. See Id. ¶ 27. Correctional Officer Sullivan was a named defendant in another lawsuit filed by Gulley, No. 3:18cv941(SRU). See Id. Correctional Officer Brown, who had a relationship with Correctional Officer Sullivan, choked Gulley as he jerked and squirmed. See id.

         Lieutenant Delpeschio provided Gulley with a Ferguson gown to wear during his confinement in four-point restraints instead of Gulley's own clothes. See Id. ¶ 28. Gulley received his clothes later that day when officials downgraded his status and removed him from four-point restraints. See Id. at 7 ¶ 29. Lieutenant Delpeschio issued Gulley a disciplinary report for breaking one of the restraints, but another lieutenant later dismissed the charge. See Id. at 5 ¶ 19.

         III. Discussion

         Gulley contends that the defendants subjected him to excessive use of force in violation of the Eighth Amendment and that Nurse Kris was deliberately indifferent to his medical needs in violation of the Eighth Amendment. I construe the complaint as also asserting a First Amendment retaliation claim and several Eighth Amendment deliberate indifference to health or safety claims.

         A. Official Capacity Claims

         Gulley seeks monetary damages and sues the defendants in their individual and official capacities. To the extent that Gulley seeks monetary relief from the defendants in their official capacities, such a request is barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159 (1985) (Eleventh Amendment, which protects the state from suits for monetary relief, also protects state officials sued for damages in their official capacity); Quern v. Jordan, 440 U.S. 332, 342 (1979) (Section 1983 does not override a state's Eleventh Amendment immunity). Accordingly, the claims for damages against the defendants in their official capacities are dismissed pursuant to 28 U.S.C. § 1915A(b)(2).

         B. John ...