United States District Court, D. Connecticut
JAMES E. BURNES, Plaintiff,
MARK SUDA, et al., Defendants.
INITIAL REVIEW ORDER
R. Underhill, United States District Judge.
September 19, 2019, James E. Burnes, a pretrial detainee
currently confined at the Bridgeport Correctional Center in
Connecticut, brought a complaint pro se and in
forma pauperis under 42 U.S.C. § 1983 against five
Norwalk Police Department officers: Mark Suda, Mark Lepore,
John Doe 1, John Doe 2, and John Doe 3. Compl., Doc. No. 1.
Burnes seeks damages against those officers for subjecting
him to excessive force during his arrest on July 19, 2018.
For the following reasons, I will permit the action to
proceed against defendants Mark Suda, John Doe 1, John Doe 2
and John Doe 3, but I will dismiss without prejudice the
action against Mark Lepore.
Standard of Review
28 U.S.C. § 1915A, I must review prisoner civil
complaints and dismiss any portion of the complaint that is
frivolous or malicious, that 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 the grounds upon
which they are based and to demonstrate a plausible right to
relief. Bell Atlantic 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
defendants arrested Burnes on July 19, 2018 in Norwalk,
Connecticut. Compl. ¶ 1. After a brief pursuit on foot,
one of the defendants shot Burnes with a taser, causing him
to fall to the ground. Id. at ¶ 2. Officer Doe
3, who went by the alias “Powder, ” and Officer Doe 2
held Burnes on the ground and punched him multiple times in
the face and back of the head while handcuffing him.
Id. at ¶ 3. At no time was Burnes resisting
arrest. Id. at ¶ 4.
was later accused of having narcotic substances on his
person, but those narcotics were placed near his head after
the defendants handcuffed him. Compl. ¶ 5. Officers
Suda, Doe 1, Doe 2, and Doe 3 began celebrating and
“high-fiving” each other. Id. at ¶
6. At that moment, Burnes picked up the drugs with his mouth.
Id. This prompted Suda and Does 1, 2, and 3 to punch
him in the face and command him to open his mouth.
Id. at ¶ 7.
punching him several times, Suda directed the other officers
to once again use the taser on Burnes in order to get him to
open his mouth. Compl. ¶ 8. Burnes remained face-down on
the ground and handcuffed. Id. Before the taser was
deployed, Suda put his left hand over Burnes's mouth and
said that Burnes was biting him, but Burnes never bit Suda.
Id. at ¶¶ 9-10. Doe 1 then shot Burnes
with the taser, and Burnes surrendered the narcotics.
Id. at ¶¶ 11-12. Doe 2 then picked up
Burnes by the helmet he had been wearing but then let go of
the helmet, causing Burnes to fall face-first on the ground.
Id. at ¶ 13.
was transported to Norwalk Hospital where he received
treatment for his injuries. Compl. ¶ 14. The
defendants' use of the taser on Burnes during the arrest
was not documented in the arrest reports. Id. at
claims that the defendants subjected him to excessive force,
in violation of his Fourth Amendment protection against
unreasonable seizures, and his Fourteenth Amendment right to
due process. Compl. at 6. He is also pursuing state law
claims of assault and battery against the defendants.
initial matter, Burnes's Fourteenth Amendment due process
claim is subject to dismissal because it alleges the same set
of facts as his Fourth Amendment excessive force claim.
“Where a particular Amendment ‘provides an
explicit textual source of constitutional protection'
against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing'” that
claim. Albright v. Oliver, 510 U.S. 266, 273 (1994)
(quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). Accordingly, I will consider only whether plaintiff
has stated a plausible Fourth Amendment excessive force claim
Fourth Amendment's protection against unreasonable
seizures prohibits the use of excessive force by [law
enforcement] officers in arresting suspects.” Orr
v. Waterbury Police Dep't, 2018 WL 780218, at *5 (D.
Conn. Feb. 8, 2018) (citing Hemphill v. Scott, 141
F.3d 412, 416-17 (2d Cir. 1998)). To state a Fourth Amendment
claim for excessive force, the plaintiff must allege facts
showing that the defendants' use of force was
“objectively unreasonable.” Id. (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)). The
“reasonableness” of the use of force must be
judged from the perspective of a reasonable officer on the
scene. Id. (citing Graham, 490 U.S. at
396). It “requires consideration of the severity of the
crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether the
suspect is actively resisting arrest or attempting to evade
arrest by flight.” Id. (quoting
Hemphill, 141 F.3d at 417).
has stated a plausible excessive force claim against Suda,
Doe 1, Doe 2, and Doe 3 based on allegations that they
punched him several times and shot him with a taser while he
was handcuffed on the ground and, at one point, caused him to
fall face-first on the ground. Those allegations support an
inference that the defendants' use of force on July 19,
2018, was ...