Ward v. Walker, et al

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Case 6:22-cv-06497-FPG-CDH Document9_ Filed 04/20/23 Page1of9

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LONDARR WARD,
Plaintiff,
Vv. 22-CV-6497-FPG
ORDER
JOHN DOE #3, C.O. RODRIGUEZ,
KOZLOWSKI, and KRAJEWSKI,

Defendants.

INTRODUCTION

Pro se Plaintiff Londarr Ward (“Plaintiff”), a pretrial detainee currently incarcerated at Erie
County Correctional Facility (“ECCF”), filed this civil rights action seeking relief under
42 U.S.C. § 1983. ECF No. 1. Upon screening of Plaintiffs Complaint under 28 U.S.C. §§
1915(e)(2)(B) and 1915A, his claim was dismissed with leave to file a second amended complaint.
ECF No. 7. Plaintiff timely filed an Amended Complaint. ECF No. 8.

For the reasons below, Plaintiff's excessive force claim against Defendants Rodriguez,
Kozlowski, Krajewski and John Doe may proceed to service, but the remaining claims are
dismissed under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

DISCUSSION

Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss
legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall dismiss a complaint in a civil action in
which a prisoner seeks redress from a governmental entity, or an officer or employee of a

governmental entity, if the court determines that the action (1) fails to state a claim upon which

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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relief may be granted or (2) seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915A(b)(1)-(2). Generally, the court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless the court can rule out any possibility,
however unlikely it might be, that an amended complaint would succeed in stating a claim.”
Abbas, 480 F.3d at 639 (internal quotation marks omitted). But leave to amend pleadings may be
denied when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000).
I. THE COMPLAINT

In evaluating the Amended Complaint, the Court must accept all factual allegations as true
and must draw all inferences in Plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir.
2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). “Specific facts are not
necessary,” and a plaintiff “need only ‘give the defendant fair notice of what the .. . claim is and
the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, (2007) (quoting Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation omitted)); see
also Boykin v. Keycorp, 521 F.3d 202, 216 (2d Cir. 2008) (“[E]ven after Twombly, dismissal of a
pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases.”).
Although “a court is obliged to construe [pro se] pleadings liberally, particularly when they allege
civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings
submitted pro se must meet the notice requirements of Rule 8 of the Federal Rules of Civil
Procedure. See Wynder v. McMahon, 360 F.3d 73, 79 n. 11 (2d Cir. 2004).

The following recitation of facts are taken from the Amended Complaint, the original
Complaint, and attached documents. On September 27, 2022, Plaintiff fought with his attorney in

the ECCF visiting room, during which he punched his attorney in the head with a closed fist at

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least four times. ECF No. 1 at 11-13.! After a response team arrived, Plaintiff was cooperative
and did not resist authority. ECF No. 8 at 11. However, Defendant Rodriguez placed handcuffs
on Plaintiff in a manner that caused cutting, bruising, soreness and numbness in his hands and
wrists. Jd. John Doe #3 was unnecessarily rough when he put handcuffs on Plaintiff, causing
injury. Jd. at 3.

When Plaintiff told Rodriguez the handcuffs were too tight, Rodriguez said he did not care
and tightened the handcuffs. /d. at 11. Rodriguez then bent and twisted Plaintiffs fingers and
wrists. Jd. Kozlowski also bent Plaintiff's hands. /d. at 2.

The response team threw Plaintiff on the floor and jumped on him, causing additional pain,
bruising and cutting. Jd. at 11, 13. Plaintiff alleges that Defendants suffocated him and interfered
with his breathing. Jd. at 13. Plaintiff submitted a grievance in which he complained about the
encounter. Jd. at 15. Plaintiff's grievance related to this incident and all related appeals were
denied. Jd. at 7.

Plaintiff claims “very bad permanent and lasting soreness, pain, and numbness to my back,
wrists, and hands that won’t go away and [has] been there for 6 months.” Jd. at 5. Plaintiff also
alleges that he has experienced loss of motion, and all of these symptoms have required

“continuous trips to medical.” Jd.

Il. SECTION 1983 CLAIMS

' The Court’s review of Plaintiffs claims includes documents related to a grievance that he attached to the original
Complaint. See Cooper v. Dennison, No. 08-CV-6238 CJS, 2011 WL 1118685, at *1 (W.D.N.Y. Mar. 24, 2011)
(citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (“[T]he complaint is deemed to include
any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”).
A court may consider exhibits attached to an original complaint where the plaintiff omitted them from a subsequent
complaint in a blatant effort to change his statement of the facts. See James v. Gage, No. 15-CV-106 (KMK), 2019
WL 1429520, at *7 (S.D.N.Y. Mar. 29, 2019) (collecting cases).

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“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged
conduct (1) was attributable to a person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.”
Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d
865, 875-76 (2d Cir. 1994)). “Section 1983 itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d
515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

To establish liability against an official under § 1983, a plaintiff must allege that official’s
personal involvement in the alleged constitutional violation; it is not enough to assert that the
defendant is a link in the chain of command. See McKenna v. Wright, 386 F.3d 432, 437 (2d Cir.
2004). Moreover, the theory of respondeat superior is not available in a § 1983 action. See
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). “[T]here is no special rule for supervisory
liability. Instead, a plaintiff must plead and prove that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal quotation marks and citation omitted).

A. Excessive Force

The Court’s first screening order dismissed Plaintiff's excessive force claim because it
brought a conclusory allegation of injury, and documentation attached to the original Complaint
indicated that Plaintiff sustained no more than de minimis injury. ECF No. 7 at 7. However, the
Court granted Plaintiff leave to amend the Complaint, and the Amended Complaint includes
sufficient allegations of injury, for the reasons explained below.

“To succeed in an excessive force claim under the Fourteenth Amendment, a pre-trial

detainee like [Plaintiff] ‘must show only that the force purposely or knowingly used against him

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was objectively unreasonable.’” Johnson v. Turnbill, 715 Fed. App’x 84, 85 (2d Cir. 2018)
(summary order) (quoting the “objective unreasonableness” standard set forth in Kingsley v.
Hendrickson, 576 U.S. 389, 396 (2015), and applying it to a claim that the use of tight handcuffs
constituted excessive force). In Johnson, the Court recognized “that excessively tight handcuffing
that causes injury can constitute excessive force.” Jd. at 85 (alteration omitted) (quoting Shamir
v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015)). “In determining whether officers applied
handcuffs reasonably, courts ‘consider evidence that: 1) the handcuffs were unreasonably tight; 2)
the defendants ignored the [plaintiff's] pleas that the handcuffs were too tight; and 3) the degree
of injury to the wrists.” Ali v. Ramos, No. 16-CV-01994 (ALC), 2018 WL 1353210, at *5
(S.D.N.Y. Mar. 14, 2018) (quoting Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d
459, 468 (S.D.N.Y. 2008)).

When considering the injury to a pretrial detainee, “[t]here is a consensus among courts in
this circuit that tight handcuffing does not constitute excessive force unless it causes some injury
beyond temporary discomfort.” Lynch, 567 F. Supp. 2d at 468 (collecting cases). “De minimis
injuries from handcuffing such as numbness or inflammation are insufficient to state an excessive
force claim.” McGarrell y. Arias, No. 18 Civ. 2273 (GBD)(HBP), 2019 WL 2528370, at *4
(S.D.N.Y. March 1, 2019), report and recommendation adopted, 2019 WL 2528370 (S.D.N.Y.
Mar. 19, 2019) (holding that a pretrial detainee failed to state an excessive force claim, where he
sustained only minor injuries after being handcuffed for a short period of time); see also Johnson
v. City of New York, No. 18-CV-5623 (ALC), 2020 WL 3100197, at *3 (S.D.N.Y. June 11, 2020)
(noting that “[i]t is well established that ‘brief numbness’ is not sufficient to sustain an
unreasonable handcuffing claim.”) (quoting Hamlett v. Town of Greenburgh, No. 05 Civ. 3215

(MDF), 2007 WL 119291, at *3 (S.D.N.Y. Jan. 17, 2007).

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The Amended Complaint alleges that Rodriguez, Kozlowski, and John Doe #3 injured him
when they placed handcuffs on him that were too tight. ECF No. 8 at 3,11. He further alleges
that when he complained of pain caused by the handcuffs, Rodriguez told him he did not care. /d.
at 11. Plaintiff claims that he continues to experience substantial soreness, pain, numbness, and
loss of motion in his wrists and hands. ECF No. 8 at 5. Because Plaintiff alleges that these
symptoms have lasted for more than five months after the use of force in September 2022, he
sufficiently alleges that he is experiencing more than “temporary discomfort,” Lynch, 567 F. Supp.
2d at 468, or “de minimis injury,” Johnson, 2020 WL 3100197, at *3.

In addition, Plaintiff asserts that he has experienced months of back pain and that
Defendants suffocated him and stopped him from breathing on September 27, 2022. ECF No. 8
at 5, 13. “In assessing a claim of excessive force, courts ask ‘whether the officers’ actions are
“objectively reasonable” in light of the facts and circumstances confronting them.’” Lombardo v.
City of St. Louis, 141 S.Ct. 2239, 2241 (2021) (quoting Graham v. Connor, 490 U.S. 386, 397
(1989)). This inquiry requires consideration of factors such as

the relationship between the need for the use of force and the amount of force used;

the extent of the plaintiffs injury; any effort made by the officer to temper or to

limit the amount of force; the severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Id. (vacating summary judgment entered in favor of officers whose efforts to subdue a pretrial
detainee allegedly led to his suffocation and death) (quoting Kingsley, 576 U.S. at 397). At this
early stage of the proceedings, Plaintiff has sufficiently alleged that use of force resulting in his
suffocation and months of back of pain was objectively unreasonable. See Pizarro v. Ponte, No.
17 Civ. 4412 (LGS), 2019 WL 568875, at *7 (S.D.N.Y. Feb. 11, 2019) (denying defendants’
motion for summary judgment on inmate’s claim that force used by officers, including putting him

in a chokehold, was excessive); Burch v. City of New York, No. 11-CV-2841 (CBA) (VMS), 2016

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WL 11430773, at *10 (E.D.N.Y. Apr. 22, 2016) (denying defendants’ motion for summary
judgment on excessive force claim alleging that officers caused a detainee’s death by placing him
facedown in handcuffs, with one officer’s knee on his back and another officer’s knee on his neck,
while the detainee complained that he could not breathe).

Plaintiff's allegations that Defendants suffocated him and placed him in handcuffs that
were too tight are sufficient for his excessive force claim to proceed to service. In addition,
Plaintiff sufficiently alleges the personal involvement of each Defendant in the events on
September 27, 2022, which caused his injuries.

B. Previously Dismissed Claims

Plaintiffs official-capacity claims and claims against the Erie County Sheriff and the Erie
County Executive were dismissed with leave to amend in the first screening order. ECF No. 7 at
8. Plaintiff does not replead these claims or name the Erie County Sheriff or the Erie County
Executive as Defendants in the Amended Complaint; therefore, the Court deems these claims
abandoned. See Ping Tou Bian v. Taylor, 23 Fed. App’x 75, 77 (2d Cir. 2001) (summary order)
(“It is well-established that ‘an amended complaint ordinarily supersedes the original and renders
it of no legal effect.’” (quoting Harris v. City of New York, 186 F.3d 242, 249 (2d Cir. 1999)));
Vargas v. Mott, No. 21-CV-6165-DGL-MJP, 2022 WL 3236744, at *2 (W.D.N.Y. July 13, 2022),
report and recommendation adopted by 2022 WL 3229844 (W.D.N.Y. Aug. 10, 2022), (noting
that “when a pro se party has been expressly warned that the amended pleading will replace the
original, the party abandons any claims not incorporated into the amended pleading.”).
I. VALENTIN ORDER

The Amended Complaint identifies John Doe #3, Correction Officer as a Defendant.

Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the Court requests that

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the Erie County Attorney’s Office ascertain the full name of the John Doe Defendant that Plaintiff
seeks to sue. The Court also requests the Erie County Attorney’s Office provide the address at
which John Doe #3 may be served. The Erie County Attorney’s Office need not undertake to
defend or indemnify this individual at this juncture. This Order merely provides a means by which
Plaintiff may name and properly serve John Doe #3 as instructed by the Second Circuit in Valentin.

The Erie County Attorney’s Office is hereby directed to produce the information specified
above regarding the identify of John Doe #3 within 30 days of the date of the entry of this Order.
The information shall be forwarded to the Court’s Pro Se Unit, United States District Court, 2120
Kenneth B. Keating Federal Building, 100 State Street, Rochester, New York 14614. When this
information is provided, Plaintiff's Amended Complaint shall be deemed amended to reflect the
full name of John Doe #3, summonses shall issue, and the Court directs service on this Defendant.

ORDER

IT HEREBY IS ORDERED that the Erie County Attorney’s Office shall provide the Court
with the name and address of John Doe #3—or a written statement of reasons why such
identification is improper or impossible—within 30 days of the date of this Order; and it is
further

ORDERED that the Clerk of Court is directed to cause the United States Marshal Service
to serve copies of the Amended Complaint and this Order upon Defendants Rodriguez, Kozlowski,
Krajewski, and John Doe #3, without Plaintiffs payment therefor, unpaid fees to be recoverable

if this action terminates by monetary award in Plaintiff's favor;? and it is further

2 Pursuant to a Standing Order of Court, filed September 28, 2012, a defendant will have 60 days to file and serve an
answer or other responsive pleading, see Fed. R. Civ. P. 12(a)-(b), if the defendant and/or the defendant’s agent has
returned an Acknowledgement of Receipt of Service by Mail Form within 30 days of receipt of the summons and
amended complaint by mail pursuant to N.Y.C.P.L.R. § 312-a.

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ORDERED, that upon service, pursuant to 42 U.S.C. § 1997e(g), Defendants are directed
to answer the Amended Complaint; and it is further

ORDERED, that the Clerk of Court is directed to forward a copy of this Order by mail to
the Erie County Attorney, Edward A. Rath County Office Building, 95 Franklin Street, Rm 1634,
Buffalo, New York 14202.

SO ORDERED.

Dated: April & 2023

Rochester, New York