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Paschal-Barros v. Kenny

United States District Court, D. Connecticut

June 28, 2019

CAPTAIN THOMAS KENNY, et al. Defendants.



         On November 15, 2018, the plaintiff, Kyle Lamar Paschal-Barros, an inmate currently confined at the Northern Correctional Institution (“NCI”) in Somers, Connecticut, filed a complaint pro se pursuant to 42 U.S.C. § 1983, against thirteen Department of Correction (“DOC”) officials in their individual capacities for damages. Compl. (Dkt. No. 1). He claims that the defendants violated his Eighth Amendment protection against cruel and unusual punishment by subjecting him to excessive force, failing to intervene during the use of force, failing to treat his injuries, and/or failing to investigate or take remedial action on December 5, 2016. Id. at 8. On December 10, 2018, this Court permitted the plaintiff's Eighth Amendment claims to proceed against eight of the named defendants. Initial Review Order (Dkt. No. 7) at 8.

         On March 7, 2019, the eight remaining defendants moved to dismiss the complaint on the ground that the plaintiff failed to exhaust his administrative remedies prior to commencing suit. Am. Mot. to Dismiss (Dkt. No. 24). The plaintiff filed two responses to the defendants' motion (Dkt. Nos. 28, 41), contending that he properly exhausted his administrative remedies when he “discovered” that the force used against him on December 5, 2016 was “excessive.” The defendants responded with a written reply (Dkt. No. 43), and the plaintiff countered with a third opposition (Dkt. No. 47). For the following reasons, the amended motion to dismiss is GRANTED.

         I. Standard of Review

         To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Id. This standard is not a probability requirement; the complaint must show, not merely allege, that the plaintiff is entitled to relief. See id.

         “Although all allegations contained in the complaint are assumed to be true, this tenet is ‘inapplicable to legal conclusions.'” LaMagna v. Brown, 474 Fed.Appx. 788, 789 (2d Cir. 2012) (quoting Ashcroft, 556 U.S. at 678); see also Amaker v. New York State Dep't of Corr. Services 435 Fed.Appx. 52, 54 (2d Cir. 2011) (same). Accordingly, the Court is not “bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted)). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). This is true whether the plaintiff has counsel or appears pro se. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). However, “[w]here . . . the complaint was filed pro se, it must be construed liberally with ‘special solicitude' and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).

         In deciding a motion to dismiss, the Court may consider “statements or documents incorporated into the complaint by reference . . . and documents possessed by or known to the plaintiff and upon which [he] relied in bringing the suit.” ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The Court may also “take judicial notice of public records such as pleadings, orders, judgments, and other documents from prior litigation, including state court cases.” Lynn v. McCormick, No. 17-CV-1183 (CS), 2017 WL 6507112, at *3 (S.D.N.Y. Dec. 18, 2017) (citing Lou v. Trutex, Inc., 872 F.Supp.2d 344, 349 n.6 (S.D.N.Y. 2012)); see also Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993).

         II. Factual Allegations

         The Court relies on the same set of facts articulated in its Initial Review Order for purposes of this ruling:

On December 5, 2016, Captain Kenny and C/Os Swan, Kacprzyski, Reyes, Blekis, and Vitale responded to the plaintiff's cell because the plaintiff had covered his cell window for a second time. The plaintiff covered the window out of protest because he had been denied toilet paper in his cell. Kenny elected to place the plaintiff in in-cell restraints. The officers then removed the plaintiff from his cell and escorted him to a different cell for in-cell restraint placement.
During the escort, the plaintiff was verbally disrespectful to the defendants but was physically compliant. He taunted Kenny and, at one point, made a noise which Kenny interpreted to be an attempt to spit at the officers. Kenny, therefore, directed C/O Blekis to place a spit-prevention mask on the plaintiff.
After the mask was applied, the plaintiff continued to taunt Kenny. C/O Swan then slapped him, and Kenny deployed chemical agent, yelling at the plaintiff to stop spitting. C/Os Swan, Kacprcyski, Reyes, and Blekis then pushed the plaintiff onto a cell bunk and began punching and knee striking him, commanding him to “give up [his] hands.” C/O Vitale also ran into the cell and assisted in the assault, striking the plaintiff's head and upper body. During the assault, C/O Galpin was operating a video camera. Both Galpin and C/O Byars were outside the cell during the assault but failed to intervene.
The plaintiff suffers from Post-Traumatic Stress Disorder (“PTSD”) as a result of numerous incidents of physical abuse. As a result, he was unable to recall the assault on December 5, 2016 until September of 2017. In September 2017, his former public defender showed him the video footage of the incident, and the plaintiff discovered that the defendants' use of force was excessive. The video shows Kenny and the officers beating the plaintiff after he was placed in handcuffs and the plaintiff bleeding from his injuries. After the assault, the video shows the plaintiff being placed in a new cell where he told ...

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