Burnes v. Suda

          INITIAL REVIEW ORDER

          Stefan R. Underhill, United States District Judge.

         On 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.

         I. Standard of Review

         Under 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 se litigants).

         II. Facts

         The 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, ”^[1] 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.

         Burnes 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.

         After 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.

         Burnes 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 ¶ 15.

         III. Analysis

         Burnes 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. Id.

         As an 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 against defendants.

         “The 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).

         Burnes 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 ...