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Drewry v. Maine Department of Corrections

United States District Court, D. Maine

March 4, 2016



JOHN C. NIVISON, Magistrate Judge.

In this action, Plaintiff Brandon Drewry, an inmate in the custody of the Maine Department of Corrections, alleges that he was subjected to excessive force on December 11, 2014, that he was "written-up" for conduct in which he did not engage, and that he was not able to use available video evidence in his defense during disciplinary proceedings. (Complaint, ECF No. 1.) Subsequent to the filing of his original complaint, Plaintiff filed a motion to amend the complaint to clarify his claimed damages and the Defendants against whom he is seeking monetary damages. (ECF No. 11.)

Plaintiff filed an application to proceed in forma pauperis (ECF No. 4), which application the Court granted. (ECF No. 8.) In accordance with the in forma pauperis statute, a preliminary review of Plaintiff's complaint is appropriate. 28 U.S.C. § 1915(e)(2). Additionally, Plaintiff's complaint (ECF No. 1) and his motion to amend (ECF No. 11) are subject to screening "before docketing, if feasible or... as soon as practicable after docketing, " because he is "a prisoner seek[ing] redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a).

As explained below, following a review of the pleadings, the motion to amend is granted, and the recommendation is that the Court dismiss the claims against the Maine Department of Corrections, Joseph Fitzpatrick, Rodney Bouffard, Kevin Court, Unit Manager Mendez, John Doe, and Jane Doe without service of process.


Plaintiff alleges that on December 11, 2014, Defendant "Officer Staples" and Defendant Thomas Averill threw him to the ground while his hands were cuffed behind his back, and that Defendant Staples placed his knee on the back of Plaintiff's head while Defendant Averill sat on Plaintiff's hands, for "no less than two minutes, " during which time Plaintiff could not breathe and experienced "great pain." (Complaint, PageID # 4.) Plaintiff also alleges that the officers placed a spit mask/mesh hood over his head and charged him with disciplinary violations, including Class A - bodily injury and Class A - bodily fluid, even though he was injured and he did not spit at anyone. ( Id. ) Plaintiff believes that Sergeant Kevin Court and two John Doe officers may also have contributed to the pain he suffered during the incident. (Motion to Amend, ECF No. 11, PageID # 68.)

According to Plaintiff, at Plaintiff's disciplinary hearing, Defendant Harold Abbot refused to consider video evidence of the incident and imposed a punishment of, inter alia, approximately 85 days of disciplinary confinement. (Complaint, PageID # 5.) Defendant Deputy Warden Troy Ross conducted the administrative appeal and also refused to consider the video evidence. (Motion to Amend, PageID # 69.)

Plaintiff asserts that Defendants Averill and Staples used excessive force and inflicted cruel and unusual punishment in violation of the Eighth Amendment. (PageID # 8.) Additionally, Plaintiff alleges that Defendants Abbot and Ross violated the Due Process Clause by refusing to review video evidence as part of the disciplinary proceedings. (PageID # 9, 69.) Plaintiff asserts his claim under 42 U.S.C. § 1983. (PageID # 14.)


When a party is proceeding in forma pauperis, "the court shall dismiss the case at any time if the court determines, " inter alia, that the action is "frivolous or malicious" or "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B). "Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke v. Williams, 490 U.S. 319, 324 (1989). Similarly, a lawsuit by a prisoner against a governmental entity and its officers is subject to dismissal, sua sponte, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1).

When considering whether a complaint states a claim for which relief may be granted, courts must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "The relevant question... in assessing plausibility is not whether the complaint makes any particular factual allegations but, rather, whether the complaint warrant[s] dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible.'" Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n. 14). Although a pro se plaintiff's complaint is subject to "less stringent standards than formal pleadings drafted by lawyers, " Haines v. Kerner, 404 U.S. 519, 520 (1972), the complaint may not consist entirely of "conclusory allegations that merely parrot the relevant legal standard, " Young v. Wells Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal standard applied to the pleadings of pro se plaintiffs "is not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a claim").


A. Plaintiff's Motion to Amend

Plaintiff is entitled to amend his complaint as a matter of course because Defendants have yet to be served. Fed.R.Civ.P. 15(a)(1)(A). Plaintiff's motion to amend (ECF No. 11) is granted, and the amendment will be within ...

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