The case is Fabricio v. Annucci, a summary order issued on November 6. It is not uncommon to see the Court of Appeals reinstate lawsuits like this. The trial courts often dismiss Section 1983 civil rights claims filed by inmates, many of who prosecute their appeals pro se, without a lawyer. This guy wins the appeal on his own. He alleges the following facts:
The excessive-force claim centers on Fabricio’s allegations that Officer Long “smack[ed]” him in the eye after several officers had subjected Fabricio to a search. Fabricio alleged that the officers’ stated reason for singling him out at first — that he was wearing too many layers of clothing — was pretextual, and that the real reason was that he had reported a correction officer’s misconduct at another prison. The officers then searched Fabricio who, believing the reasons for the search to have been pretextual, “start[ed] looking for [the officers’] names,” at which point one of the corrections officers told him to “go and sit down on [a] metal chair.” Fabricio did so, and then got up again, at which point that corrections officer pushed him back into the chair and said, “don’t misspell my name.” Officer Long then “smack[ed]” Fabricio “hard . . . on his right eye.” Fabricio also alleged that, after Officer Long hit him, Officer Long warned Fabricio not to file a grievance or to seek medical attention lest he “go to the box” for an “assault on staff.”Sounds like a case, no? To survive a motion to dismiss, inmates have to allege that the violence was not done "in a good-faith effort to maintain or restore discipline." While plaintiff did allege that one of the officers told him to sit down, which might suggest that he failed to comply with a directive, "Fabricio also alleged that another officer had already shoved him back in the chair, supporting an inference that no additional force was necessary to restore discipline, even assuming any had been necessary to begin with. Officer Long’s threat about what would happen if Fabricio sought medical attention, meanwhile, further supports a reasonable inference that Officer Long was not acting in good faith — as does Fabricio’s allegation that he was singled out in the first place because he had reported officer misconduct at another prison."
We also got a retaliation claim. Plaintiff's prior grievance against the correction officer. "Fabricio alleged that Officer Long warned him that 'if he [wrote] a grievance about” Officer Long’s alleged use of force, Fabricio would have to 'deal with the consequences.' After Fabricio filed such a grievance, and while Fabricio was waiting to be released from his cell so that he could go to the gym, Officer Long told him that he was 'on hold,' and added that he had 'got the grievance' and made an off-color remark about what he planned to do with it. We have little trouble concluding that Fabricio’s complaint sufficiently alleges protected conduct and, in light of Officer Long’s alleged comments, a causal connection between that conduct and the action alleged to have been retaliatory."