Bennet v. Washington et al

3:22-cv-01036-SRU

2023 | Cited 0 times | D. Connecticut | December 7, 2023

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JULIAN BENNET, Plaintiff, v. WASHINGTON, et al., Defendants.

No. 3:22-cv-1036 (SRU)

INITIAL REVIEW ORDER Julian Bennet, currently incarcerated at Garner Correctional Institution , brings a complaint under 42 U.S.C. § 1983 against seventeen defendants in their individual capacities Warden Washington, Deputy Warden Thomas Kenny, Deputy Warden Snyder, Captain Lugo,

Shift Commander George Hurdle, Officer Griffin, Officer Kenney, Officer Ortiz, Officer Price, Officer Kwaak, Officer Stager, Officer Pelletieri, Lieutenant Grant, Lieutenant Cary, Lieutenant McKellin, Nurse Luara Oliveris, and Inmate Shawn Milner. 1

Doc. No. 1 at 3-4. principally arise from several alleged incidents in late 2021, during which Bennet was physically

attacked by Milner. Id. at ¶¶ 48-81.

For the reasons set forth below, I conclude that Bennet has plausibly pled a cognizable Eighth Amendment deliberate indifference claim, a section 1983 conspiracy to violate Bennets constitutional rights claim, an Eighth Amendment excessive force claim, a section 1983 failure to intervene claim, and several tort-law claims.

1 Throughout this Order, I refer to both Deputy Warden Kenny and Officer Kenney by their titles, in addition to their surnames, for the sake of clarity. I refer to all other parties by their surnames only. I. Factual Background

Julian Bennet is a convicted state prisoner presently incarcerated at Garner Correctional . He alleges that, at the time of the incidents that form the bases of his complaint, he was classified in Phase 3 of Administrative Segregation. Doc. No. 1 at ¶¶ 32-33.

his unit, including to Washington, Deputy Warden Kenny, Snyder, Lugo, and Hurdle. Id. at ¶¶ 36-37, 43. Those briefings provide staff with specific rules for inmates on Administrative Segregation, including t Id. at ¶¶ 36-37 (cleaned up). Staff are also Id. at ¶ 43.

Bennet alleges that on or about November 24, 2021, Milner, another prisoner, began Administrative Segregation Phase 2 at Garner. Id documented history of conflicts Id. at ¶ 45. That history was briefed to Garner unit staff including to Washington, Deputy Warden Kenny, Snyder, Hurdle, Lugo, and Griffin by the

Id. at ¶¶ 45-46. Bennet alleges that on

Milner being extracted from his cell. Id. at ¶ 55. Bennet avers that Milner proceeded to strike a corrections officer in the head. Id. Notwithstanding that conduct, Washington did not regress Milner to an earlier phase of Administrative Segregation. Id. at ¶ 56.

Bennet further . . . cag during outdoor recreation, even though the procedure was to maintain at least one cage between two inmates who conflict with one another. Id. at ¶ 47. Bennet alleges that Milner removed a bottle of urine from his clothing, held it through the caging, an Id. at ¶ 48. Bennet alleges that Griffin observed that conduct, laughed, and did not interfere. Id. at ¶ 49. Bennet further alleges that Milner verbally harassed and threatened Bennet for the remaining two hours of recreation. Id. at ¶ 50. Bennet asked Griffin to be permitted to return inside to shower and change clothing, but Griffin refused. Id.

After the incident in the recreation cage, Bennet alleges that Milner continued to harass him. He avers that M him] with physical violence, further assault[] [him] with bodily waste, and [would] harass [Bennet] by yelling out of his cell door on Id. at ¶ 52.

Bennet also alleges that on December 26, 2021, Milner violently assaulted Bennet in the shower. Id. at ¶ 60. He alleges that several of the defendants namely, Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, and McKellin engaged in a conspiracy to permit Milner to assault Bennet without consequences. Bennet describes the December 26

incident as follows. On the evening of December 26, Bennet left his cell to attend gym recreation. Id. at ¶ 62. While Bennet was out of his cell, several of the defendants removed Milner from his cell,

Id. The defendants then permitted Mi

policy allots only fifteen minutes for showers. Id. at ¶ 63. One hour after Bennet had left his cell Id. at ¶ 65. He took his fifteen-minute shower, then exited. Id Id. at ¶ 66. Bennet alleges that Officer Kenney, Ortiz, Price, Kwaak, Stager, and Pelletieri Id. at ¶ 67. Eventually, Ortiz and Officer Kenney intervened and pulled

Milner away from Bennet and held Milner back. Id. at ¶ 68. Meanwhile, Price, Kwaak, Stager, and Pelletieri Id. Bennet further alleges

that Pelletieri Id.

After the incident, Grant, Cary, and McKellin placed Bennet and Milner in punitive segregation cells. Id. at ¶ 69. Bennet alleges that they then strip searched him. Id. He further alleges that Grant, Cary, and McKellin intentionally did not sign the assault disciplinary report issued to Milner although signing such reports was a routine duty resulting in the disciplinary Id. at ¶¶ 70- 71 Id. at ¶ 70.

Bennet further alleges that Washington, Deputy Warden Kenny, Snyder, Lugo, Hurdle, and Id. at ¶ 74. Bennet alleges 6, 2021 [Officer] Kenney, Ortiz, and Pelletieri harass and threa Id. at

¶ Id. Bennet contends he wrote several requests to Washington, Deputy

Warden Kenny, Snyder, Lugo, and Hurdle seeking an end to the incidents, but no action was taken. Id. at ¶¶ 76-77. Bennet also alleges that he asked Grant and Cary [o]n numerous occasions . . . to stop allowing their officers to allow Milner to walk around the unit and assault [Bennet]. Id. at ¶ 75.

On December 27, 2021, Bennet saw Oliveris for medical attention for the injuries he had sustained in the December 26 attack. Id. at ¶ . . to her, which included pain in the neck, back, and face; severe headaches, nausea, dizziness, Id. (cleaned up). He further requested a medical evaluation, but Oliveri Id. Bennet then asked Washington and Snyder for medical attention when the two were conducting their unit tours, and the two did not Id. at ¶ 80. Bennet alleges tha suffer splitting headaches, blurred vision, bouts [of] nausea, dizziness and faintness from an untreated concussion, and . . Id. at ¶ 81.

Id. at ¶ 78.

II. 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 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 right to relief. See Bell Atlantic v. Twombly, 550 U.S. 555-56 (2007). Conclusory allegations are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662 Twombly, 550 U.S. at 570. Nevertheless, it is well- establ p]ro se 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).

III. Discussion

Bennet attempts to bring several constitutional-law claims against the defendants. See generally Doc. No. 1 at ¶¶ 1, 4, 85-102. Upon review of his complaint, I discern the following cognizable claims: an Eighth Amendment deliberate indifference claim against all prison staff defendants; a conspiracy to violate Bennets constitutional rights claim against Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, McKellin, and Milner; an Eighth Amendment excessive force claim against Price, Kwaak, Stager, and Pelletieri; a failure to intervene claim against Ortiz, Officer Kenney, Price, Kwaak, Stager, and Pelletieri; and the tort- law claims of battery, assault, and intentional infliction of emotional distress against Milner.

A. Eighth Amendment Deliberate Indifference

Bennet brings an Eighth Amendment deliberate indifference claim against the defendants. See generally Doc. No. 1. The Eighth Amendment to the U.S. Constitution protects against the infliction of cruel and unusual punishment. See U.S. Const. amend. VIII. An incarcerated plaintiff seeking to advance an Eighth Amendment claim must establish both an objective and a subjective element. He e of life

Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (citation omitted).

I first Walker

v. Schult, 717 F.3d 119, 128 (2d Cir. 2013); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994) . . . to protect prisoners from violence at the hands of other Cortes Quinones v. Jimenez Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). Furthermore, unsanitar can also Walker, 717 F.3d at 127 (collecting cases). Moreover, medical injuries such as concussions can meet the objective element if they are sufficiently serious. See , 2017 WL 5137583, at *3 (D. Conn. Nov. 6, 2017); see also Estelle v. Gamble, 429 U.S. 97, 104 05 (1976). Bennet alleges that the defendants facilitated another inmate to violently attack him and to subject him to unsanitary conditions. Bennet also alleges that certain of the defendants were deliberately indifferent with respect to the injuries he had sustained in the course of the attack and with respect to the injuries he endured after the attack. Bennet has therefore alleged sufficient facts to meet the objective element at this stage of the proceedings.

I next turn to the subjective prong whether Bennet has alleged facts from which a sufficiently culpable state of mind can be inferred for each of the defendants. Bennett must show that each of the defendants violated the Constitution through his or her own conduct, and not merely through those defendants supervision of other individuals who committed the violation. See Tangreti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020).

Upon review of the allegations in the complaint, I conclude that Bennet has pled an Eighth Amendment deliberate indifference claim against defendants Washington, Deputy Warden Kenny, Snyder, Lugo, Hurdle, Griffin, Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, and McKellin. That claim may proceed against the defendants on the

behavior.

I further conclude that Bennet has also pled an Eighth Amendment deliberate indifference claim against Oliveris, Washington, and Snyder needs following the December 26, 2021 incident. That claim may proceed on the theory that

Bennet had suffered serious injuries after the December 26 attack, that he reported those injuries to Oliveris, Washington, and Snyder, and that none of those defendants took any action in response.

B. Section 1983 Conspiracy

I also liberally construe to violate constitutional rights claim against Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, McKellin, and Milner. 2

[section] 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).

In his complaint, Bennet alleges that Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri 26,

2 Milner is not a state actor. Thus, he is only subject to section 1983 liability to the extent that he acted in concert with other defendants (all state actors) to deprive Bennet of his constitutional rights. See Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). 2021 attack on Bennet. See Doc. No. 1 at ¶¶ 60-61. Accordingly, I permit a Section 1983 conspiracy claim to proceed against those defendants based on the theory that they conspired to deprive Bennet of his Eighth Amendment rights.

C. Eighth Amendment Excessive Force I further construe complaint to bring an Eighth Amendment excessive force claim against Price, Kwaak, Stager, and Pelletieri. Generally, to find that excessive force was used in violation of the Eighth Amendment, a plaintiff must prove by the preponderance of the evidence, that force was used against the plaintiff, and that such force was used maliciously and sadistically to cause harm, and not in a good-faith effort to maintain or restore discipline. Henry v. Dinelle, 929 F. Supp. 2d 107, 116 (N.D.N.Y. 2013), aff d, 557 F. Appx 20 (2d Cir. 2014); see also Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).

Bennet alleges that shortly after Milner attacked him on December 26, 2021, the correctional officers who were present physically separated Bennet and Milner. Doc. No. 1 at ¶ 68. In doing so, Price, Kwaak, Stager, and Pelletieri tackled Bennet, causing his head to strike the concrete wall and floor. Id. at ¶ 68. Then, Pelletieri, Kwaak, and Stager struck Bennet Id. (cleaned up). Based on those factual allegations to state a claim of Eighth Amendment excessive force against Price, Kwaak, Stager, and

Pelletieri.

D. Section 1983 Failure to Intervene I also Ortiz and Officer Kenney, as well as the other corrections officers present during the December

26, 2021 incident. Absent direct participation in an act of excessive force, defendants may still be held liable for constitutional violations under a failure-to-intervene theory. Livingston v. Hoffnagle, 2021 WL 3888283, at *5 (N.D.N.Y. Aug. 3, 2021), report and recommendation adopted, 2021 WL 3885247 (N.D.N.Y. Aug. 31, 2021) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001)). An officer may be held liable for failur (1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officers position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene. Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008), aff d sub nom. Jean-Laurent v. Wilkerson, 461 F. Appx 18 (2d Cir. 2012).

Bennet alleges that Ortiz and Officer Kenney were present during the December 26, 2021 incident and were holding Milner back when Price, Kwaak, Stager, and Pelletieri tackled Bennet. Doc. No. 1 at ¶ 68. Therefore, to the extent that other defendants acted with excessive force against Bennet during that incident, Ortiz and Officer Kenney were present and did not intervene to prevent the harm.

Pelletieri to the extent that it is later determined that (1) one or more of the defendants present during the December 26, 2021 attack engaged in excessive force, and (2) the defendants not personally involved in inflicting that excessive force nevertheless failed to intervene.

E. Tort Law

the tort-law claims of battery, assault, and intentional infliction of emotional distress against Milner.

Bennet a battery claim against Milner. to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly 13 (1965). Bennet alleges several incidents in which Milner threw bodily fluids at Bennet. E.g., Doc. No. 1 at ¶ 48. Bennet also alleges that on December 26, 2021, Milner physically attacked him and struck him. Id. at ¶ 66. I therefore permit a battery claim against Milner to proceed.

Bennet has also plead an assault claim against Milner.

(1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. (2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm. Restatement (Second) of Torts § 21 (1965). In addition to the previously-mentioned allegations , Bennet also alleges that Milner frequently made violent threats toward him. For example, Bennet alleges that during the first week of December 2021, when he and Milner were in neighboring cages for outdoor recreation, Milner held a bottle of urine through the caging, sprayed Bennet with the urine, and Bennet for two hours. Id. at ¶¶ 48-50. I therefore conclude that Bennet has plausibly pled an

assault claim against Milner sufficient for this stage of the proceedings.

distress, [he] knew or should have known that emotional distress was the likely result of [his] conduct; (2) that the conduct was extreme and outrageous; (3) that the defendants conduct was the cause of the plaintiff Powell v. Jones-Soderman, 433 F. Supp. 3d 353, 377 (D. Conn. 2020), aff d, 849 F. Appx 274

(2d Cir. 2021) (quoting Appleton v. Bd. of Educ., 254 Conn. 205, 210 (2000)). Bennet avers that Milner assaulted him with bodily fluids, including urine and fecal matter, on multiple occasions. Doc. No. 1 at ¶¶ 48, 75, 78. For example, Bennet alleges that Milner would cell and verbally harass him and threaten him and spray urine and fecal matter at him through the cell door . . . Id. at ¶ 75. Bennet further alleges that Milner would Id. at ¶ 52. Moreover, Bennet alleges that Milner physically and violently attacked him on December 26, 2021 as Bennet was exiting the shower. Id. at ¶ 66. All those factual allegations support a claim of intentional infliction of emotional distress. Accordingly, claims of battery, assault, and intentional infliction of emotional distress may proceed against Milner.

ADDITIONAL ORDERS (1) Within twenty-one (21) days of this Order, the Clerk shall verify the current work addresses of: Warden Washington, Deputy Warden Kenny, Deputy Warden Snyder, Captain Lugo, Commander Hurdle, Officer Griffin, Officer Kenney, Officer Ortiz, Officer Price, Officer Kwaak, Officer Stager, Officer Pelletieri, Lieutenant Grant, Lieutenant Cary, Lieutenant McKellin, and Nurse Oliveris. The Clerk shall also verify a current prison address for Milner. The Clerk shall then mail a copy of the Complaint, this Order, and a waiver of service of process request packet to each defendant in his or her individual capacity at his or her confirmed address. On the thirty-fifth (35th) day after mailing, the Clerk shall report to the Court on the status of each request. If any defendant fails to return the waiver request, the Clerk shall make arrangements for in-person service by the U.S. Marshals Service and that defendant shall be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d). (2) The defendants shall file a response to the complaint, either an answer or motion to dismiss, within thirty (30) days from the date the Notice of Lawsuit and Waivers of Service of Summons forms are mailed to them. If they choose to file an answer, they shall admit or deny the allegations and respond to the cognizable claims recited above. They may also include all additional defenses permitted by the Federal Rules. (3) Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be completed within six months (180 days) from the date of this Order. Discovery requests need not be filed with the Court. (4) All motions for summary judgment shall be filed within seven months (210 days) from the date of this Order. (5) If Bennet changes his address at any time during the litigation of this case, Local Rule 83.1(c)2 provides that Bennet MUST notify the Court. Failure to do so can result in the dismissal of the case. Bennet must give notice of a new address even if he is incarcerated. Bennet should write PLEASE NOTE MY NEW ADDRESS on the notice. It is not enough to just put the new address on a letter without indicating that it is a new address. If Bennet has more than one pending case, he should indicate all case numbers in the notification of change of address. Bennet should also notify the defendants or the attorney for the defendants of his new address. (6) Bennet shall utilize the Prisoner Efiling Program when filing documents with the Court. Bennet is advised that the Program may be used only to file documents with the Court. Local Court Rule 5(f) provides that discovery requests are not to be filed with the Court.

(7) The Clerk shall immediately enter the District of Connecticut Standing Order Re: Initial Discovery Disclosures concerning cases initiated by self-represented inmates and shall send a copy of the Standing Order to the parties. (8) The Clerk shall send a courtesy copy of the complaint and this Order to the Connecticut Attorney General and the Department of Correction Legal Affairs Unit.

So ordered. Dated at Bridgeport, Connecticut, this 7th day of December 2023.

/s/ STEFAN R. UNDERHILL Stefan R. Underhill United States District Judge

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JULIAN BENNET, Plaintiff, v. WASHINGTON, et al., Defendants.

No. 3:22-cv-1036 (SRU)

INITIAL REVIEW ORDER Julian Bennet, currently incarcerated at Garner Correctional Institution , brings a complaint under 42 U.S.C. § 1983 against seventeen defendants in their individual capacities Warden Washington, Deputy Warden Thomas Kenny, Deputy Warden Snyder, Captain Lugo,

Shift Commander George Hurdle, Officer Griffin, Officer Kenney, Officer Ortiz, Officer Price, Officer Kwaak, Officer Stager, Officer Pelletieri, Lieutenant Grant, Lieutenant Cary, Lieutenant McKellin, Nurse Luara Oliveris, and Inmate Shawn Milner. 1

Doc. No. 1 at 3-4. principally arise from several alleged incidents in late 2021, during which Bennet was physically

attacked by Milner. Id. at ¶¶ 48-81.

For the reasons set forth below, I conclude that Bennet has plausibly pled a cognizable Eighth Amendment deliberate indifference claim, a section 1983 conspiracy to violate Bennets constitutional rights claim, an Eighth Amendment excessive force claim, a section 1983 failure to intervene claim, and several tort-law claims.

1 Throughout this Order, I refer to both Deputy Warden Kenny and Officer Kenney by their titles, in addition to their surnames, for the sake of clarity. I refer to all other parties by their surnames only. I. Factual Background

Julian Bennet is a convicted state prisoner presently incarcerated at Garner Correctional . He alleges that, at the time of the incidents that form the bases of his complaint, he was classified in Phase 3 of Administrative Segregation. Doc. No. 1 at ¶¶ 32-33.

his unit, including to Washington, Deputy Warden Kenny, Snyder, Lugo, and Hurdle. Id. at ¶¶ 36-37, 43. Those briefings provide staff with specific rules for inmates on Administrative Segregation, including t Id. at ¶¶ 36-37 (cleaned up). Staff are also Id. at ¶ 43.

Bennet alleges that on or about November 24, 2021, Milner, another prisoner, began Administrative Segregation Phase 2 at Garner. Id documented history of conflicts Id. at ¶ 45. That history was briefed to Garner unit staff including to Washington, Deputy Warden Kenny, Snyder, Hurdle, Lugo, and Griffin by the

Id. at ¶¶ 45-46. Bennet alleges that on

Milner being extracted from his cell. Id. at ¶ 55. Bennet avers that Milner proceeded to strike a corrections officer in the head. Id. Notwithstanding that conduct, Washington did not regress Milner to an earlier phase of Administrative Segregation. Id. at ¶ 56.

Bennet further . . . cag during outdoor recreation, even though the procedure was to maintain at least one cage between two inmates who conflict with one another. Id. at ¶ 47. Bennet alleges that Milner removed a bottle of urine from his clothing, held it through the caging, an Id. at ¶ 48. Bennet alleges that Griffin observed that conduct, laughed, and did not interfere. Id. at ¶ 49. Bennet further alleges that Milner verbally harassed and threatened Bennet for the remaining two hours of recreation. Id. at ¶ 50. Bennet asked Griffin to be permitted to return inside to shower and change clothing, but Griffin refused. Id.

After the incident in the recreation cage, Bennet alleges that Milner continued to harass him. He avers that M him] with physical violence, further assault[] [him] with bodily waste, and [would] harass [Bennet] by yelling out of his cell door on Id. at ¶ 52.

Bennet also alleges that on December 26, 2021, Milner violently assaulted Bennet in the shower. Id. at ¶ 60. He alleges that several of the defendants namely, Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, and McKellin engaged in a conspiracy to permit Milner to assault Bennet without consequences. Bennet describes the December 26

incident as follows. On the evening of December 26, Bennet left his cell to attend gym recreation. Id. at ¶ 62. While Bennet was out of his cell, several of the defendants removed Milner from his cell,

Id. The defendants then permitted Mi

policy allots only fifteen minutes for showers. Id. at ¶ 63. One hour after Bennet had left his cell Id. at ¶ 65. He took his fifteen-minute shower, then exited. Id Id. at ¶ 66. Bennet alleges that Officer Kenney, Ortiz, Price, Kwaak, Stager, and Pelletieri Id. at ¶ 67. Eventually, Ortiz and Officer Kenney intervened and pulled

Milner away from Bennet and held Milner back. Id. at ¶ 68. Meanwhile, Price, Kwaak, Stager, and Pelletieri Id. Bennet further alleges

that Pelletieri Id.

After the incident, Grant, Cary, and McKellin placed Bennet and Milner in punitive segregation cells. Id. at ¶ 69. Bennet alleges that they then strip searched him. Id. He further alleges that Grant, Cary, and McKellin intentionally did not sign the assault disciplinary report issued to Milner although signing such reports was a routine duty resulting in the disciplinary Id. at ¶¶ 70- 71 Id. at ¶ 70.

Bennet further alleges that Washington, Deputy Warden Kenny, Snyder, Lugo, Hurdle, and Id. at ¶ 74. Bennet alleges 6, 2021 [Officer] Kenney, Ortiz, and Pelletieri harass and threa Id. at

¶ Id. Bennet contends he wrote several requests to Washington, Deputy

Warden Kenny, Snyder, Lugo, and Hurdle seeking an end to the incidents, but no action was taken. Id. at ¶¶ 76-77. Bennet also alleges that he asked Grant and Cary [o]n numerous occasions . . . to stop allowing their officers to allow Milner to walk around the unit and assault [Bennet]. Id. at ¶ 75.

On December 27, 2021, Bennet saw Oliveris for medical attention for the injuries he had sustained in the December 26 attack. Id. at ¶ . . to her, which included pain in the neck, back, and face; severe headaches, nausea, dizziness, Id. (cleaned up). He further requested a medical evaluation, but Oliveri Id. Bennet then asked Washington and Snyder for medical attention when the two were conducting their unit tours, and the two did not Id. at ¶ 80. Bennet alleges tha suffer splitting headaches, blurred vision, bouts [of] nausea, dizziness and faintness from an untreated concussion, and . . Id. at ¶ 81.

Id. at ¶ 78.

II. 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 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 right to relief. See Bell Atlantic v. Twombly, 550 U.S. 555-56 (2007). Conclusory allegations are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662 Twombly, 550 U.S. at 570. Nevertheless, it is well- establ p]ro se 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).

III. Discussion

Bennet attempts to bring several constitutional-law claims against the defendants. See generally Doc. No. 1 at ¶¶ 1, 4, 85-102. Upon review of his complaint, I discern the following cognizable claims: an Eighth Amendment deliberate indifference claim against all prison staff defendants; a conspiracy to violate Bennets constitutional rights claim against Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, McKellin, and Milner; an Eighth Amendment excessive force claim against Price, Kwaak, Stager, and Pelletieri; a failure to intervene claim against Ortiz, Officer Kenney, Price, Kwaak, Stager, and Pelletieri; and the tort- law claims of battery, assault, and intentional infliction of emotional distress against Milner.

A. Eighth Amendment Deliberate Indifference

Bennet brings an Eighth Amendment deliberate indifference claim against the defendants. See generally Doc. No. 1. The Eighth Amendment to the U.S. Constitution protects against the infliction of cruel and unusual punishment. See U.S. Const. amend. VIII. An incarcerated plaintiff seeking to advance an Eighth Amendment claim must establish both an objective and a subjective element. He e of life

Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (citation omitted).

I first Walker

v. Schult, 717 F.3d 119, 128 (2d Cir. 2013); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994) . . . to protect prisoners from violence at the hands of other Cortes Quinones v. Jimenez Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). Furthermore, unsanitar can also Walker, 717 F.3d at 127 (collecting cases). Moreover, medical injuries such as concussions can meet the objective element if they are sufficiently serious. See , 2017 WL 5137583, at *3 (D. Conn. Nov. 6, 2017); see also Estelle v. Gamble, 429 U.S. 97, 104 05 (1976). Bennet alleges that the defendants facilitated another inmate to violently attack him and to subject him to unsanitary conditions. Bennet also alleges that certain of the defendants were deliberately indifferent with respect to the injuries he had sustained in the course of the attack and with respect to the injuries he endured after the attack. Bennet has therefore alleged sufficient facts to meet the objective element at this stage of the proceedings.

I next turn to the subjective prong whether Bennet has alleged facts from which a sufficiently culpable state of mind can be inferred for each of the defendants. Bennett must show that each of the defendants violated the Constitution through his or her own conduct, and not merely through those defendants supervision of other individuals who committed the violation. See Tangreti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020).

Upon review of the allegations in the complaint, I conclude that Bennet has pled an Eighth Amendment deliberate indifference claim against defendants Washington, Deputy Warden Kenny, Snyder, Lugo, Hurdle, Griffin, Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, and McKellin. That claim may proceed against the defendants on the

behavior.

I further conclude that Bennet has also pled an Eighth Amendment deliberate indifference claim against Oliveris, Washington, and Snyder needs following the December 26, 2021 incident. That claim may proceed on the theory that

Bennet had suffered serious injuries after the December 26 attack, that he reported those injuries to Oliveris, Washington, and Snyder, and that none of those defendants took any action in response.

B. Section 1983 Conspiracy

I also liberally construe to violate constitutional rights claim against Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri, Grant, Cary, McKellin, and Milner. 2

[section] 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).

In his complaint, Bennet alleges that Officer Kenney, Ortiz, Price, Kwaak, Stager, Pelletieri 26,

2 Milner is not a state actor. Thus, he is only subject to section 1983 liability to the extent that he acted in concert with other defendants (all state actors) to deprive Bennet of his constitutional rights. See Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). 2021 attack on Bennet. See Doc. No. 1 at ¶¶ 60-61. Accordingly, I permit a Section 1983 conspiracy claim to proceed against those defendants based on the theory that they conspired to deprive Bennet of his Eighth Amendment rights.

C. Eighth Amendment Excessive Force I further construe complaint to bring an Eighth Amendment excessive force claim against Price, Kwaak, Stager, and Pelletieri. Generally, to find that excessive force was used in violation of the Eighth Amendment, a plaintiff must prove by the preponderance of the evidence, that force was used against the plaintiff, and that such force was used maliciously and sadistically to cause harm, and not in a good-faith effort to maintain or restore discipline. Henry v. Dinelle, 929 F. Supp. 2d 107, 116 (N.D.N.Y. 2013), aff d, 557 F. Appx 20 (2d Cir. 2014); see also Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).

Bennet alleges that shortly after Milner attacked him on December 26, 2021, the correctional officers who were present physically separated Bennet and Milner. Doc. No. 1 at ¶ 68. In doing so, Price, Kwaak, Stager, and Pelletieri tackled Bennet, causing his head to strike the concrete wall and floor. Id. at ¶ 68. Then, Pelletieri, Kwaak, and Stager struck Bennet Id. (cleaned up). Based on those factual allegations to state a claim of Eighth Amendment excessive force against Price, Kwaak, Stager, and

Pelletieri.

D. Section 1983 Failure to Intervene I also Ortiz and Officer Kenney, as well as the other corrections officers present during the December

26, 2021 incident. Absent direct participation in an act of excessive force, defendants may still be held liable for constitutional violations under a failure-to-intervene theory. Livingston v. Hoffnagle, 2021 WL 3888283, at *5 (N.D.N.Y. Aug. 3, 2021), report and recommendation adopted, 2021 WL 3885247 (N.D.N.Y. Aug. 31, 2021) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001)). An officer may be held liable for failur (1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officers position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene. Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008), aff d sub nom. Jean-Laurent v. Wilkerson, 461 F. Appx 18 (2d Cir. 2012).

Bennet alleges that Ortiz and Officer Kenney were present during the December 26, 2021 incident and were holding Milner back when Price, Kwaak, Stager, and Pelletieri tackled Bennet. Doc. No. 1 at ¶ 68. Therefore, to the extent that other defendants acted with excessive force against Bennet during that incident, Ortiz and Officer Kenney were present and did not intervene to prevent the harm.

Pelletieri to the extent that it is later determined that (1) one or more of the defendants present during the December 26, 2021 attack engaged in excessive force, and (2) the defendants not personally involved in inflicting that excessive force nevertheless failed to intervene.

E. Tort Law

the tort-law claims of battery, assault, and intentional infliction of emotional distress against Milner.

Bennet a battery claim against Milner. to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly 13 (1965). Bennet alleges several incidents in which Milner threw bodily fluids at Bennet. E.g., Doc. No. 1 at ¶ 48. Bennet also alleges that on December 26, 2021, Milner physically attacked him and struck him. Id. at ¶ 66. I therefore permit a battery claim against Milner to proceed.

Bennet has also plead an assault claim against Milner.

(1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. (2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm. Restatement (Second) of Torts § 21 (1965). In addition to the previously-mentioned allegations , Bennet also alleges that Milner frequently made violent threats toward him. For example, Bennet alleges that during the first week of December 2021, when he and Milner were in neighboring cages for outdoor recreation, Milner held a bottle of urine through the caging, sprayed Bennet with the urine, and Bennet for two hours. Id. at ¶¶ 48-50. I therefore conclude that Bennet has plausibly pled an

assault claim against Milner sufficient for this stage of the proceedings.

distress, [he] knew or should have known that emotional distress was the likely result of [his] conduct; (2) that the conduct was extreme and outrageous; (3) that the defendants conduct was the cause of the plaintiff Powell v. Jones-Soderman, 433 F. Supp. 3d 353, 377 (D. Conn. 2020), aff d, 849 F. Appx 274

(2d Cir. 2021) (quoting Appleton v. Bd. of Educ., 254 Conn. 205, 210 (2000)). Bennet avers that Milner assaulted him with bodily fluids, including urine and fecal matter, on multiple occasions. Doc. No. 1 at ¶¶ 48, 75, 78. For example, Bennet alleges that Milner would cell and verbally harass him and threaten him and spray urine and fecal matter at him through the cell door . . . Id. at ¶ 75. Bennet further alleges that Milner would Id. at ¶ 52. Moreover, Bennet alleges that Milner physically and violently attacked him on December 26, 2021 as Bennet was exiting the shower. Id. at ¶ 66. All those factual allegations support a claim of intentional infliction of emotional distress. Accordingly, claims of battery, assault, and intentional infliction of emotional distress may proceed against Milner.

ADDITIONAL ORDERS (1) Within twenty-one (21) days of this Order, the Clerk shall verify the current work addresses of: Warden Washington, Deputy Warden Kenny, Deputy Warden Snyder, Captain Lugo, Commander Hurdle, Officer Griffin, Officer Kenney, Officer Ortiz, Officer Price, Officer Kwaak, Officer Stager, Officer Pelletieri, Lieutenant Grant, Lieutenant Cary, Lieutenant McKellin, and Nurse Oliveris. The Clerk shall also verify a current prison address for Milner. The Clerk shall then mail a copy of the Complaint, this Order, and a waiver of service of process request packet to each defendant in his or her individual capacity at his or her confirmed address. On the thirty-fifth (35th) day after mailing, the Clerk shall report to the Court on the status of each request. If any defendant fails to return the waiver request, the Clerk shall make arrangements for in-person service by the U.S. Marshals Service and that defendant shall be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d). (2) The defendants shall file a response to the complaint, either an answer or motion to dismiss, within thirty (30) days from the date the Notice of Lawsuit and Waivers of Service of Summons forms are mailed to them. If they choose to file an answer, they shall admit or deny the allegations and respond to the cognizable claims recited above. They may also include all additional defenses permitted by the Federal Rules. (3) Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be completed within six months (180 days) from the date of this Order. Discovery requests need not be filed with the Court. (4) All motions for summary judgment shall be filed within seven months (210 days) from the date of this Order. (5) If Bennet changes his address at any time during the litigation of this case, Local Rule 83.1(c)2 provides that Bennet MUST notify the Court. Failure to do so can result in the dismissal of the case. Bennet must give notice of a new address even if he is incarcerated. Bennet should write PLEASE NOTE MY NEW ADDRESS on the notice. It is not enough to just put the new address on a letter without indicating that it is a new address. If Bennet has more than one pending case, he should indicate all case numbers in the notification of change of address. Bennet should also notify the defendants or the attorney for the defendants of his new address. (6) Bennet shall utilize the Prisoner Efiling Program when filing documents with the Court. Bennet is advised that the Program may be used only to file documents with the Court. Local Court Rule 5(f) provides that discovery requests are not to be filed with the Court.

(7) The Clerk shall immediately enter the District of Connecticut Standing Order Re: Initial Discovery Disclosures concerning cases initiated by self-represented inmates and shall send a copy of the Standing Order to the parties. (8) The Clerk shall send a courtesy copy of the complaint and this Order to the Connecticut Attorney General and the Department of Correction Legal Affairs Unit.

So ordered. Dated at Bridgeport, Connecticut, this 7th day of December 2023.

/s/ STEFAN R. UNDERHILL Stefan R. Underhill United States District Judge

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