Parks v. Lantz et al
Filing
96
ORDER granting in part and denying in part 86 Defendant's Motion to Dismiss. See attached memorandum of decision. SO ORDERED. Signed by Judge Vanessa L. Bryant on March 28, 2012. (Butler, Ayanna)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID S.L. PARKS,
Plaintiff,
v.
THERESA C. LANTZ, ET AL.,
Defendants
:
:
:
:
:
:
:
CASE NO. 3:09cv604(VLB)
March 28, 2012
RULING GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
The plaintiff, David S.L. Parks, filed this action pro se under 42 U.S.C. §§
1983 and 1986 and Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, et seq. against thirty-eight defendants. On July 6, 2009, the court
informed plaintiff that he should be aware that Rule 8(a)(2) of the Federal Rules of
Civil Procedure only requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief” and that there
is no requirement that plaintiff include detailed factual allegations or submit
exhibits in support of the factual allegations. (See Ruling and Order, Doc. No. 16
at 7.) Despite this notification from the court, plaintiff chose to file an amended
complaint that fails to comply with Rule 8(a)2, Fed. R. Civ. P., in that it is 218
pages in length and includes a ninety-three page statement of claims and ninetyeight pages of exhibits. Because the plaintiff proceeds pro se in this action, the
court overlooked the fact that the amended complaint did not comply with Rule 8
of the Federal Rules of Civil Procedure and considered the allegations included in
the statement of claims and reviewed the exhibits attached to the amended
1
complaint as well as the supplemental exhibits in support of the amended
complaint filed on February 22, 2010.
On July 6, 2010, the Court filed an Initial Review Order addressing the
claims in the amended complaint and dismissing the section 1985 and 1986
claims, the Fifth and Sixth Amendment claims, the Section 1983 claims against all
defendants in their official capacities, the ADA claims against all defendants in
their individual capacities and all other claims against defendants Ottolini,
Budlong, Burns, Morris, Bona Sepa, McGaughney, Alisberg, Gaynor, Rutledge,
Stefan, LaFrance, Pesanti, Silvis, Migliaro, Mendelsohn, Dignam, Luna, Cleaver,
Blumenthal and Smith. The court also declined to exercise supplemental
jurisdiction over any state law claims against defendants Ottolini, Budlong,
Burns, Morris, Bona Sepa, McGaughney, Alisberg, Gaynor, Rutledge, Stefan,
LaFrance, Pesanti, Silvis, Migliaro, Mendelsohn, Dignam, Luna, Cleaver,
Blumenthal and Smith. The court concluded that the Section 1983 claims of
deliberate indifference to medical needs, conspiracy, retaliation, denial of access
to courts and violations of due process against defendants Lantz, Choinski, Rell,
Brian Murphy, Blanchette, Furey, Peter Murphy, Sieminski, Dzurenda, Semple,
Benner, Lasrove, Arrias, Falcone, Berrios, Ralliford and Griffith in their individual
capacities, the ADA claims against those same defendants in their official
capacities and the various state law claims against those defendants would
proceed. The remaining defendants have moved to dismiss the claims against
them. For the reasons that follow, the motion to dismiss is granted in part and
denied in part.
2
I. STANDARD OF REVIEW
When considering a motion to dismiss, the court accepts as true all factual
allegations in the complaint and draws inferences from these allegations in the
light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir. 2003).
The court considers not whether the plaintiff ultimately will prevail, but whether
he has stated a claim upon which relief may be granted so that he should be
entitled to offer evidence to support his claim. See York v. Association of Bar of
City of New York, 286 F.3d 122, 125 (2d Cir.), cert. denied, 537 U.S. 1089 (2002).
In reviewing the complaint in response to a motion to dismiss, the court
applies “a ‘plausibility standard,’ which is guided by two working principles.”
Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). First, the requirement
that the court accept as true the allegations in the complaint “‘is inapplicable to
legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949). Second, to survive a
motion to dismiss, the complaint must state a plausible claim for relief.
Determining whether the complaint states a plausible claim for relief is “‘a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.’” Id. (quoting Iqbal, 129 S. Ct. at 1950). Even
under this standard, however, the court liberally construes a pro se complaint.
3
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Boykin v. KeyCorp,
521 F.3d 202, 213-14, 216 (2d Cir. 2008).
II.
FACTS1
In July 2005, plaintiff was confined at MacDougall and was taking
medications for HIV and an anxiety disorder and also suffered from Hepatitis C.
Plaintiff claims that for a nine month period from July 13, 2005 until April 26, 2006,
Dr. Blanchette discontinued his HIV medications and his anxiety medication,
refused to treat him for Hepatitis C and placed him on medications for bi-polar
disorder, even though he did not suffer from that condition. Plaintiff alleges that
these changes in medications compromised his immune system and his mental
health. In late April 2006, an infectious disease physician examined plaintiff and
re-prescribed HIV medications and a psychiatrist examined plaintiff and represcribed a medication for plaintiff’s anxiety disorder.
Plaintiff claims that during an eighteen month period beginning on April 19,
2006, Wardens Sieminski, Dzurenda and Peter Murphy and Dr. Blanchette
transferred him to and from different prison facilities nine times in retaliation for
his filing of grievances and legal actions and his complaints regarding two
consent decrees. In January 2008, plaintiff’s viral load increased from under
100,000 to almost 200,000.2 Plaintiff alleges that this increase was due to stress
from constant transfers to different prison facilities and changes in his various
medications.
2
“Viral load” refers to the amount of HIV in a patient’s bloodstream.
4
Plaintiff asserts that on April 4, 2006, he learned that his complaint alleging
violations of the Doe, et al. v. Meachum, et al., Case No. 2:88cv562 (PCD) consent
decree had never reached the Connecticut Superior Court clerk’s office. Plaintiff
alleges that Counselor Berrios confiscated the complaint before mailing the
envelope to the court. Plaintiff filed a grievance regarding the alleged improper
confiscation of his complaint. On April 19, 2006, Warden Sieminski transferred
plaintiff to Garner Correctional Institution (“Garner”) in retaliation for plaintiff’s
filing of this grievance. Plaintiff filed an appeal of the grievance, but the appeal
was stolen from the Grievance Coordinator at Garner.
On August 11, 2006, Warden Dzurenda transferred plaintiff back to
MacDougall. At MacDougall, plaintiff submitted a written request to Warden
Sieminski and his staff about the complaint that Counselor Berrios had allegedly
stolen from the legal mailing envelope and the retaliatory prison transfers by
Wardens Dzurenda and Sieminski. In retaliation, Warden Sieminski and his staff
moved plaintiff to a suicide cell, despite the fact that he was not suicidal. In the
suicide cell, prison staff ordered plaintiff to submit to a strip-search in front of
female nurses.
In mid-August 2006, Drs. Arrias and Blanchette reduced plaintiff’s
prescription for anti-anxiety medication by half and threatened to discontinue the
anti-anxiety medication in the future. On August 25, 2006, Warden Sieminski
transferred plaintiff back to Garner. Plaintiff did not initially receive all his HIV
medications when he arrived at Garner.
5
In September 2006, plaintiff learned that monitors of the consent decree
entered in Connecticut Office of Protection and Advocacy, et al. v. Warden Wayne
Choinski of Northern Correctional Institution, et al., Case No. 3:03cv1352 (RNC)
(“OPA v. Choinski”), were coming to Garner. Plaintiff was confined to a cell with
a defective cell door that would not close properly. Plaintiff complained to prison
staff regarding the door and other cell conditions. On September 10, 2006,
plaintiff’s finger was almost amputated by the defective door in his cell.
University of Connecticut Medical Center (“UCONN”) surgeons were able to reattach the finger, but it was deformed and did not function properly after the
surgery. Plaintiff filed grievances regarding the defective cell door.
On October 15, 2006, plaintiff demanded to see the court monitors of the
Choinski consent decree. Defendants retaliated against plaintiff for his
complaints and grievances regarding the defective cell door and transferred him
to MacDougall on October 16, 2006.
On November 30, 2006, plaintiff sent a letter to Commissioner Lantz and
Attorney Alisberg of the Office of Protection and Advocacy regarding violations
of the Choinski consent decree, theft of his legal mail and Dr. Blanchette’s
interference with his HIV medications. On February 21, 2007, Patricia Ottolini
responded to the letter on behalf of Commissioner Lantz. She indicated that
plaintiff was being followed by Dr. Sied and an infectious disease nurse. She also
stated informed plaintiff that she had his complaints regarding stolen legal mail
to Deputy Warden Brian Murphy for review. Plaintiff received no response from
Deputy Warden Murphy.
6
In November and December 2006, defendants set plaintiff up to be attacked
by another inmate. On December 27, 2006, Inmate Harris assaulted plaintiff
causing him to hit his head on the cement floor twice. As a result of this incident,
medical staff transferred him to the prison hospital where he remained for twentyone days. Plaintiff asserts that he suffered a permanent head injury as a result of
the assault by Inmate Harris.
Plaintiff filed grievances and complaints regarding the assault with the
grievance coordinator at MacDougall as well as Warden Sieminski and
Commissioner Lantz. Plaintiff also demanded to see the Connecticut State Police
in order to file criminal charges against Inmate Harris. In retaliation, Warden
Sieminski transferred plaintiff back to Garner on January 16, 2007.
At Garner, plaintiff experienced vertigo from his head injury. Dr. O’Halloran
submitted a request for a CT Scan and a neurological consultation and that
plaintiff be treated for Hepatitis C. In February 2007, District Administrator
Choinski informed plaintiff that he could write to the Connecticut State Police
himself if he wanted to file charges against Inmate Harris. In early April 2007,
plaintiff mailed a letter to the Connecticut State Police regarding the assault, but
did not receive a response.
Between January and June 2007, Warden Dzurenda transferred plaintiff to
three different cells within Garner causing him to suffer stress and anxiety. On
June 26, 2007, a physician at Garner transferred plaintiff to Corrigan Correctional
Institution (“Corrigan”) to receive a blood transfusion. When plaintiff arrived, a
7
physician at Corrigan told him that he did not need a blood transfusion. On June
28, 2007, Corrigan prison officials transferred plaintiff back to Garner.
In July 2007, Warden Dzurenda placed an unsentenced detainee in
plaintiff’s cell. Plaintiff claimed that the warden had hoped that he would be able
to get his cellmate to confess to several murders. On August 10, 2007, Warden
Dzurenda transferred the detainee from plaintiff’s cell. That same day, court
monitors for the Choinski decree visited Garner and spoke to plaintiff. Plaintiff
told the monitors that he was working out his legal and mental health issues with
the Department of Correction.
On September 27, 2007, Warden Dzurenda transferred plaintiff back to
MacDougall. On October 17, 2007, medical personnel transferred plaintiff to
UCONN to undergo a biopsy in connection with his Hepatitis C treatment. On
October 18, 2007, a captain issued plaintiff a false disciplinary report. The
disciplinary report was dismissed later the same day for process failure.
On October 26, 2007, Peter Murphy, the new Warden at MacDougall,
transferred plaintiff back to Garner. On November 12, 2007, Nurse Benner and Dr.
Lasrove discontinued one anti-anxiety medication and started plaintiff on another
anti-anxiety medication, but at a much lower dosage. Plaintiff demanded to the
court monitors for the Choinski consent decree over these changes in
medication, but defendants failed to grant plaintiff his request.
On January 3, 2008, Dr. O’Halloran informed plaintiff that his viral load is
almost 200,000. Dr. O’Halloran allegedly informed plaintiff that the increase in his
viral load was due to the multiple prison transfers and the changes in his anti-
8
anxiety medications. Dr. O’Halloran re-prescribed the anti-anxiety medication
plaintiff had been receiving, but at a higher dosage.
In March 2008, plaintiff filed grievances regarding violations of the Choinski
consent decree and the refusal of Warden Dzurenda to permit him to see the
court monitors. Plaintiff asserts that in late March 2008, Counselor Migliaro
forged his signature on a form seeking to withdraw one of his grievances against
Warden Dzurenda. Plaintiff sent letters regarding this forgery to Commissioner
Lantz and Governor Rell. On April 17, 2008, plaintiff sent a written complaint to
the Connecticut State Police seeking to press charges against Counselor Migliaro
for forgery, but received no response to his complaint.
On April 18, 2008, Dr. O’Halloran started plaintiff on Hepatitis C treatment.
In early May 2008, plaintiff sent letters to Governor Rell, Commissioner Lantz,
Deputy Commissioner Brian Murphy and Warden Dzurenda regarding the
interference with his legal mail and failure of staff to respond to grievances. On
May 14, 2008, Warden Dzurenda suspended plaintiff’s grievance privileges.
On June 20, 2008, plaintiff mailed a criminal complaint to the Connecticut
Superior Court for the Judicial District of Danbury. On July 8, 2008, he received a
letter from Danbury Superior Court personnel returning his complaint because a
pro se litigant is not permitted to file a criminal complaint.
On June 25, 2008, Dr. O’Halloran informed plaintiff that the Hepatitis C
treatment is not working. On August 8, 2008, Dr. O’Halloran discontinued the
Hepatitis C treatment.
9
In July 2008, Counselor Ralliford refused to make copies of legal
documents, sign an in forma pauperis application form and provide notary
services to plaintiff in connection with his attempt to a file civil action in federal
court. On August 4, 2008, Captain Falcone limited plaintiff to 100 copies per
week in violation of his right of access to the courts.
On August 21, 2008, Warden Dzurenda and Deputy Warden Semple
transferred plaintiff to MacDougall. Plaintiff claimed that Dr. Blanchette
discontinued the order that plaintiff could keep certain medications for medical
conditions, other than HIV and anxiety, with him at all times. In September 2008,
Dr. Blanchette and Nurse Margo Griffith switched the times when plaintiff was to
receive his HIV medications. Some days plaintiff did not receive certain HIV
medications or received only one-half of the prescribed dosages of medications.
Plaintiff filed grievances regarding the medication issues with Health
Administrator Furey.
Plaintiff also filed grievances regarding one of five boxes of his legal
documents that was missing when he arrived at MacDougall. The grievance was
denied.
On October 15, 2008, correctional officers conducted a shakedown of
plaintiff’s cell and dumped the contents of his four boxes of legal documents on
the floor. During the search a medication bottle was found that contained pills for
a different prescription. The officers confiscated the bottle and all of plaintiff’s
other medications, including his HIV medications. The following day, they
10
returned all of plaintiff’s medications and the empty bottle that contained pills for
a different prescription.
On October 26, 2008, two correctional officers came to plaintiff’s cell and
again confiscated all of his medications. Later that day, when plaintiff went to the
medical department to receive his medications, a nurse accused him of spitting
out his HIV medications. Plaintiff denied spitting out the medications. A search
of the trash by medical staff revealed no medications. Two hours later,
correctional officers issued plaintiff a disciplinary report for contraband and
place him in a cell in the restrictive housing unit. Plaintiff claims that this
disciplinary report was issued in retaliation for his filing a lawsuit against
Commissioner Lantz on October 22, 2008. Plaintiff filed inmate requests with
Warden Murphy and Health Administrator Furey over the false disciplinary report
and the confiscation of his medications. On November 6, 2008, a hearing officer
found plaintiff not guilty of the contraband charge.
On October 23, 2008, plaintiff mailed a civil complaint against
Commissioner Lantz together with a Mandamus Complaint against Warden
Murphy to the Connecticut Superior Court for the Judicial District of Hartford. In
early November 2008, plaintiff received the complaint and mandamus, a
summons signed by a court clerk with a return date of December 23, 2008 and a
waiver of fees form signed by a judge. Plaintiff mailed the complaint and
mandamus and summons to State Marshal Ragonese for service on November
13, 2008. Marshal Ragonese refused to serve the complaint.
11
On December 2, 2008, plaintiff sent the complaint and summons to another
Connecticut Marshal for service. Plaintiff claims that when he called the Hartford
Superior Court Clerk’s Office on December 23, 2008, the clerk who answered the
phone gave him an incorrect docket number for his case against Commissioner
Lantz. When he called the Clerk’s Office again on January 5, 2009, the clerk who
answered the phone informed plaintiff that no return of service had been filed and
there was not docket number for his case.
On January 21, 2009, plaintiff submitted a complaint against Warden
Murphy, Connecticut Marshal Ragonese and the Clerk of the Connecticut
Superior Court to the Hartford Superior Court clerk’s office. In early February
2009, plaintiff received the complaint, a summons signed by a court clerk with a
return date of March 31, 2009 and a waiver of fees form signed by a judge.
Plaintiff does not allege that he sent the complaint and summons to a
Connecticut Marshal for service.
On February 24, 2009, plaintiff sent a motion to dismiss his complaints
against defendant Lantz, Warden Murphy, Marshal Ragonese and the Chief Clerk
and his Mandamus Complaint against Warden Murphy to the Hartford Superior
Court. On March 2, 2009, plaintiff sent a new complaint against Warden Murphy,
Marshal Ragonese and the Chief Clerk to the Hartford Superior Court Clerk’s
Office. On April 1, 2009, a clerk in the Hartford Superior Court Clerk’s Office
informed plaintiff that neither his motions to dismiss or the new complaint
against Marshal Ragonese, Murphy and the Chief Clerk had been received.
12
On March 20, 2009, plaintiff received a notice from the court showing a
docket number for the case that he had filed in October 2008 against defendant
Lantz and informing him that an attorney had appeared on her behalf on March
13, 2009. See Parks v. Lantz, Case No. HHD-CV08-4041371-S (filed December 12,
2008).3 On April 3, and on April 30, 2009, plaintiff filed a motions to dismiss all of
the actions that he attempted to file in the Hartford Superior Court. On May 12,
2009, plaintiff’s motion to dismiss was docketed in Parks v. Lantz, Case No. HHDCV08-4041371-S. A judgment of dismissal entered in that case on July 27, 2009.
On April 4, 2009, plaintiff mailed a letter to Chief Clerk Robin Smith
regarding his allegations that a complaint that he had attempted to file in March
2009, and a motion to dismiss all actions that he had attempted to file in February
2009, had never been received or filed in the Hartford Superior Court. An
unidentified clerk returned the letter to plaintiff with a notice indicating that the
papers lacked a case title and case number. On April 9, 2009, plaintiff
commenced this action by filing a civil rights complaint and application to
proceed in forma pauperis.
On May 9, 2009, plaintiff mailed a complaint naming Warden Murphy,
Marshal Ragonese and Clerk Robin Smith as defendants to Hartford Superior
Court. On July 21, 2009, plaintiff filed an amended complaint in this action.
3
The docket sheet for this case may be found at:
http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=HHDCV084041
371S (last visited March 27, 2012). The court takes judicial notice of the docket sheet.
See Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991) (“[C]ourts routinely take
judicial notice of documents filed in other courts”); In re Enron Corp., 379 B.R. 425, 431
n. 18 (S.D.N.Y.2007) (“Judicial notice of public records such as court filings, is clearly
appropriate.”).
13
Plaintiff alleges that he sent multiple letters to Governor Rell,
Commissioner Lantz, District Administrator Choinski, Deputy Commissioner
Brian Murphy, Wardens Peter Murphy, John Sieminski, Dzurenda and Deputy
Warden Semple regarding the changes in the prescriptions for HIV and anxiety
medications as well as lack of treatment for Hepatitis C and the interference with
his legal mail. Plaintiff claims that these defendants either did not respond to his
letters or responded and transferred him to another prison facility in retaliation
for sending the letters. Plaintiff seeks compensatory and punitive damages.
III.
DISCUSSION
On April 18, 2011, the defendants moved to dismiss the remaining
allegations in the amended complaint. An Order of Notice to Pro Se Litigant
accompanied the motion to dismiss and informed the plaintiff of his obligation to
respond to the motion, the nature of the response to be filed and the rules
governing motions to dismiss. On May 11, 2011, the defendants filed a
supplemental memorandum in support of the motion to dismiss.
The defendants have moved to dismiss on seven grounds: (1) they were
not deliberately indifferent to the plaintiff’s medical and mental health needs; (2)
the plaintiff has failed to allege facts to state a claim of retaliation or conspiracy;
(3) the plaintiff has failed to allege that the defendants denied him access to the
courts; (4) the plaintiff has failed to allege facts to state a claim of a violation of
his due process rights; (5) the plaintiff has failed to allege the personal
involvement in the alleged constitutional violations; (6) the plaintiff’s allegations
14
that the defendants violated the ADA fail to state a claim upon which relief may be
granted; and (7) all defendants are protected by qualified immunity.
Local Rule 7(a) requires a response to the motion to dismiss within twentyone days of the date the motion was filed. Other than a letter sent to the Court
stating his intent to appeal and that he has already challenged the Defendant’s
Motion to Dismiss in his previous filings [Dkt. #92], the plaintiff has yet to file a
direct response to the motion to dismiss. Each claim raised by the remaining
defendants is analyzed without a reply from the plaintiff below.
A.
Personal Involvement
The plaintiff alleges that he sent written requests, letters, grievances and
grievance appeals to defendants Commissioner Lantz, District Administrator
Choinski, Governor Rell, Deputy Warden Semple and Deputy Commissioner Brian
Murphy. The defendants argue that the claims against them in their individual
capacities should be dismissed because the plaintiff has not alleged their
personal involvement in the alleged constitutional violations.
To recover money damages under section 1983, plaintiff must show that
these defendants were personally involved in the constitutional violations. See
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Defendants Choinski, McGill,
Rose, Light and Salius are supervisory officials. They cannot be held liable under
section 1983 solely for the acts of their subordinates. See Ayers v. Coughlin, 780
F.2d 205, 210 (2d Cir. 1985).
15
The plaintiff may show supervisory liability by demonstrating one or more
of the following criteria: (1) the defendant actually and directly participated in the
alleged unconstitutional acts; (2) the defendant failed to remedy a wrong after
being informed of the wrong through a report or appeal; (3) the defendant created
or approved a policy or custom that sanctioned objectionable conduct which rose
to the level of a constitutional violation or allowed such a policy or custom to
continue; (4) the defendant was grossly negligent in supervising the correctional
officers who committed the constitutional violation; and (5) the defendant failed
to take action in response to information regarding the occurrence of
unconstitutional conduct. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(citation omitted). In addition, plaintiff must demonstrate an affirmative causal
link between the inaction of the supervisory official and his injury. See Poe v.
Leonard, 282 F.3d 123, 140 (2d Cir. 2002).
In Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), the Supreme Court
found that a supervisor can be held liable only “through the official's own
individual actions.” Id. at ___, 129 S. Ct. at 1948. This decision arguably casts
doubt on the continued viability of some of the categories for supervisory
liability. The Second Circuit, however, has not revisited the criteria for
supervisory liability following Iqbal. See DeJesus v. Albright, No. 08 Civ. 5804
(DLC), 2011 WL 814838, at *6 n. 4 (S.D.N.Y. Mar. 9, 2011). Because it is unclear as
to whether Iqbal overrules or limits Colon the court will continue to apply the
categories for supervisory liability set forth in Colon.
16
1.
Defendants Semple, Choinski, Rell, B. Murphy and Lantz
The plaintiff alleges that he sent letters, written requests, grievances and
grievance appeals to defendants Semple, Choinski, Rell, B. Murphy and Lantz
regarding his mental and medical care, his legal work and cases and the transfers
to different correctional facilities. The plaintiff claims that these defendants failed
to respond to or investigate the claims in the letters, requests, grievances and
grievance appeals.
The fact that a prisoner sent a letter or written request to a supervisory
official does not establish the requisite personal involvement of the supervisory
official. See Rivera v. Fischer, 655 F. Supp. 2d 235, (W.D.N.Y. 2009) (“Numerous
courts have held that merely writing a letter of complaint does not provide
personal involvement necessary to maintain a § 1983 claim.”) (quoting Candelaria
v. Higley, No. 04-CV-277, 2008 WL 478408, at *2 (W.D.N.Y. Feb. 19, 2008) (citing
cases). Furthermore, the law is well established, that “a failure to process,
investigate or respond to a prisoner's grievances does not in itself give rise to a
constitutional claim.” Swift v. Tweddell, 582 F.Supp.2d 437, 445-46 (W.D.N.Y.
2008) (citing cases). Thus, a supervisory official’s mere receipt of a letter
complaining about unconstitutional conduct is not enough to give rise to
personal involvement on the part of the official. See Sealey v. Giltner, 116 F.3d
47, 51 (2d Cir. 1997) (prison official who received letter from inmate and
forwarded it to subordinate for investigation and response was not personally
involved in depriving inmate of constitutional right); Bumpus v. Canfield, 495 F.
Supp. 2d 316, 322 (W.D.N.Y. 2007) (allegation that defendant did not respond to
17
inmate's letters alleging lack of medical attention was not enough to establish
defendant's personal involvement in alleged violations); Smart v. Goord, 441 F.
Supp. 2d 631, 642-643 (S.D.N.Y. 2006) (failure of supervisory prison official to take
action in response to letters complaining of unconstitutional conduct is
insufficient to demonstrate personal involvement).
The fact that these defendants failed to respond to Inmate Request Forms
and letters is insufficient to demonstrate the personal involvement of these
defendants in the alleged deliberate indifference to his mental health condition.
The fact that some of these defendants may have failed to respond to or process
grievances or the appeals of the denials of grievances does not demonstrate the
personal involvement of these defendants in the alleged constitutional violations.
See Sealey, 116 F.3d at 51; Bumpus, 495 F. Supp. 2d at 322; Smart, 441 F. Supp.
2d at 642-643. The motion to dismiss is granted as to all claims against
defendants Semple, Choinski, Rell, B. Murphy and Lantz in their individual
capacities.
B.
Access to Courts
The plaintiff alleges that defendants Falcone, Ralliford and Berrios denied
him access to the court in various ways. Specifically, in July 2008, Counselor
Ralliford refused to make copies of legal documents, sign an in forma pauperis
application form and provide notary services to plaintiff in connection with his
attempt to a file civil action in federal court. On August 4, 2008, Captain Falcone
limited plaintiff to 100 copies per week in violation of his right of access to the
18
courts. The plaintiff asserts that on April 3, 2006, he learned that his complaint
alleging violations of the Doe, et al. v. Meachum, et al., Case No. 2:88cv562 (PCD)
consent decree had never reached the Connecticut Superior Court clerk’s office.
The plaintiff claims that Counselor Berrios confiscated the complaint before
mailing the envelope to the court.
It is well settled that inmates have a First Amendment right of access to the
courts. See Bounds v. Smith, 430 U.S. 817, 828 (1977) (modified on other grounds
by Lewis v. Casey, 518 U.S. 343, 350 (1996)). To state a claim for denial of access
to the courts, plaintiff is required to demonstrate that the defendants acted
deliberately and maliciously and that he suffered an actual injury. See Lewis, 518
U.S. at 353.
To establish an actual injury, plaintiff must allege facts showing that the
defendants took or were responsible for actions that hindered his efforts to
pursue a legal claim, prejudiced one of his existing actions, or otherwise actually
interfered with his access to the courts. See Monsky v. Moraghan, 127 F.3d 243,
247 (2d Cir. 2002)). For example, plaintiff would have suffered an actual injury if
“a complaint he prepared was dismissed for failure to satisfy some technical
requirement which, because of the deficiencies in the prison’s legal assistance
facilities, he could not have known,” or he was unable to file a complaint alleging
actionable harm because the legal assistance program was so inadequate.
Lewis, 581 U.S. at 351.
The claim that his complaint did not reach the Connecticut Superior Court
is barred by the three year statute of limitations. See Lounsbury v. Jeffries, 25
19
F.3d 131, 134 (2d Cir. 1994) (holding that, in Connecticut, the general three-year
personal injury statute of limitations period set forth in Connecticut General
Statutes § 52-577 is the appropriate limitations period for civil rights actions
asserted under 42 U.S.C. § 1983). The court deems the complaint in this action as
having been filed on April 7, 2009, when the plaintiff presumably handed his
complaint and in forma pauperis application to prison officials for filing. The
plaintiff’s claim that Officer Berrios must have confiscated the state court
complaint from the mailing envelope at some point prior to April 3, 2006 is
beyond the three year statute of limitations and is dismissed on that ground.
The plaintiff has not alleged that he suffered an actual injury as a result of
Counselor Ralliford’s refusal to make copies of legal documents, sign an in forma
pauperis application form and provide notary services to plaintiff in connection
with his attempt to a file civil action in federal court and Captain Falcone’s
imposition of a rule limiting the plaintiff to 100 copies per week. As indicated
above, the plaintiff filed an in forma pauperis application and page complaint on
April 7, 2009. He has filed numerous documents since this case was filed. These
filings belie the plaintiff’s claims that any conduct or rules imposed by
defendants Falcone or Ralliford denied him access to the courts. Because
plaintiff has failed to allege that he suffered an actual injury as a result of the
actions of defendants Falcone and Ralliford, the motion to dismiss the access to
courts claims against these defendants is granted. The claim against defendant
Berrios is dismissed as barred by the statute of limitations. See 28 U.S.C. §
1915A(b)(1).
20
C.
Retaliation and Conspiracy Claims
Prison officials may not retaliate against inmates for exercising their
constitutional rights. To state a retaliation claim, a prisoner must show (1) that he
or she engaged in constitutionally protected conduct or speech, (2) that the
prison officers or officials took adverse action against him or her, and (3) that a
causal connection existed between the protected speech or conduct and the
adverse action. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (citations
omitted). Under the second element, adverse action constitutes retaliatory
conduct that “deter[s] a similarly situated [inmate] of ordinary firmness from
exercising his or her constitutional rights.” Id. at 353 (internal quotation marks
and citation omitted). It is not necessary that the plaintiff himself be deterred.
See Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). In order to meet the third
element, the prisoner must allege that the protected conduct or speech “was a
substantial or motivating factor for the adverse actions taken by prison officials.”
Bennett v. Goord, 343 F.3 133, 137(2d Cir. 2003) (citations omitted).
Because claims of retaliation are easily fabricated, the courts consider
such claims with skepticism and require that they be supported by specific facts;
conclusory statements are not sufficient. See Flaherty v. Coughlin, 713 F.2d 10,
13 (2d Cir. 1983). If the plaintiff can meet the three elements set forth above, the
burden shifts to the defendants to demonstrate that they would have taken the
same action “even in the absence of the protected conduct.” Bennett v. Goord,
343 F.3d 133, 137 (2d Cir. 2003) (internal quotation marks and citations omitted).
21
Temporal proximity of an allegedly retaliatory disciplinary report to an
inmate’s grievance or complaint can be circumstantial evidence of retaliation.
See Gayle v. Gonyea, 313 F.3d 677, 683 (2d Cir. 2002). The Second Circuit has
found sufficient evidence of retaliation when there is both a short time between
protected activity and the retaliatory conduct and direct involvement by the
defendant. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (overruled
on other grounds, i.e. exhaustion requirement) (short time between protected
activity and retaliation coupled with defendants’ involvement in the decision to
transfer is sufficient to support inference of retaliatory motive).
Given the proximity of the alleged incidents of plaintiffs medication denial
and transfers to plaintiff’s allegation that Counselor Berrios confiscated the Doe,
et al v. Meachum, et al. consent decree before mailing the envelope to the court
and his subsequent grievance alleging the improper confiscation of his
complaint, the court finds that, under a liberal construction, plaintiff has alleged
sufficient facts for a retaliation claim. For example, plaintiff alleges the defendant
Dr. Blanchette was directly involved in the denial of his medication on numerous
occasions following the submission of his complaint. (See, e.g. Dkt. #17 p.27, 171 p.3, 17).
To the extent plaintiff claims that he was transferred nine times to different
prison facilities over a period of eighteen months in retaliation for filing
grievances and complaints, the Court finds that he fails to state a claim of
retaliation because the plaintiff concedes that he was on high security status
during that time period. Inmates on high security status are subject to prison
22
transfers every sixty days. Thus, the plaintiff's transfers were made for a reason
other than the retaliatory reasons the plaintiff has asserted were the basis for the
transfers. Because the defendants have demonstrated that they would have
transferred the plaintiff “even in the absence of the protected conduct,” this
allegation of retaliatory conduct fails to state a claim and is dismissed. Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal quotation marks and citations
omitted)(reversing and remanding summary judgment where a genuine issue of
material fact existed as to whether retaliation claim against inmate for having
successfully settled prior lawsuit against corrections officers was a substantial
factor in transfers to maximum security facilities and in the discipline he
experienced). Because the retaliatory transfer claim is the only claim remaining
against Defendant Sieminski, he should be dismissed from the case.
However, the parties agree that the plaintiff was removed from the high
security designation due to his medical illness on February 28, 2008. [Dkt. 17-2,
p. 37 and Dkt. 86-1 p.18]. After that date, the plaintiff states that he filed several
more complaints and that on August 21, 2008, he was again transferred back to
MacDougall Correctional Institution. [Dkt. 17-3, p. 12]. To the extent Defendants
Paul Murphy and Dzurenda were respectively Wardens of MacDougall and Garner
Correctional Institutions, the motions to dismiss as to these two defendants are
denied. The Court finds that the plaintiff has alleged facts sufficient to survive
the motion to dismiss in on these claims.
The Court also notes that the defendant’s complaint raises numerous,
specious unsupported interjections of “deviousness” and “coincidence” (See,
23
e.g. Dkt.17 p.7 & 21), the court finds that these allegations are “nothing more than
naked assertion[s] devoid of factual enhancements.” Iqbal at 1949. Those
interjections do not state a claim and are therefore, dismissed.
To state a claim for conspiracy under section 1983, plaintiff must allege
facts showing an agreement between two or more state actors to act in concert to
inflict an unconstitutional injury on plaintiff and an overt act done in furtherance
of the conspiracy that causes damages. See Pangburn v. Culbertson, 200 F.3d
65, 72 (2d Cir. 1999). The Second Circuit has consistently held that a claim of
conspiracy to violate civil rights requires more than general allegations.
“[C]omplaints containing only conclusory, vague, or general allegations that the
defendants have engaged in a conspiracy to deprive the plaintiff of his
constitutional rights are properly dismissed; diffuse and expansive allegations
are insufficient, unless amplified by specific instances of misconduct.”
Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (quoting Dwares
v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993) (citations, internal quotation marks,
and internal alterations omitted)).
In this case, the plaintiff does not allege any facts supporting his allegation
of a conspiracy to deny him access to the courts. For example, the plaintiff
claims “blatant attempts at fouling the Grievance procedure” and that various
named defendants (some maintained and some already dismissed) “all knew”
about it. (Dkt. 17, p.23) He further claims that the actions alleged in his complaint
were all an effort to obstruct the plaintiff from filing in a “desperate[] last ditch
effort” to avoid “criminal multiple felony counts” in a “politically organized
24
[supermax (sic.) system] designed to “expose him” to near murder. (Tr. 28-29).
However, these sweeping statements are without support. The claims of
conspiracy are therefore dismissed.
D.
Deliberate Indifference to Medical and Mental Health Needs
The Supreme Court has held that deliberate indifference by prison officials
to a prisoner’s serious medical need constitutes cruel and unusual punishment in
violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104
(1976). To prevail on such a claim, a plaintiff must provide evidence of
sufficiently harmful acts or omissions and intent to either deny or unreasonably
delay access to needed medical care or the wanton infliction of unnecessary pain
by prison personnel. See id. at 104-06. Mere negligence will not support a
section 1983 claim; “the Eighth Amendment is not a vehicle for bringing medical
malpractice claims, nor a substitute for state tort law.” Smith v. Carpenter, 316
F.3d 178, 184 (2d Cir. 2003). Thus, “not every lapse in prison medical care will
rise to the level of a constitutional violation,” id.; rather, the conduct complained
of must “shock the conscience” or constitute a “barbarous act.” McCloud v.
Delaney, 677 F. Supp. 230, 232 (S.D.N.Y. 1988) (citing United States ex rel. Hyde v.
McGinnis, 429 F.2d 864 (2d Cir. 1970)).
There are both subjective and objective components to the deliberate
indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994),
cert. denied sub nom. Foote v. Hathaway, 513 U.S. 1154 (1995). Objectively, the
alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294,
25
298 (1991). The condition must produce death, degeneration or extreme pain.
See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Subjectively, the
defendant must have been actually aware of a substantial risk that the inmate
would suffer serious harm as a result of his actions or inactions. See Salahuddin
v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). Thus, the fact that a prison official
did not alleviate a significant risk that he should have but did not perceive does
not constitute deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834,
838 (1994).
The Second Circuit has identified several factors that are highly relevant to
the inquiry into the seriousness of a medical condition. For example, a medical
condition significantly affecting the inmate’s daily activities or causing chronic
and significant pain or the existence of an injury a reasonable doctor would find
important constitutes a serious medical need. See Chance, 143 F.3d at 702. In
addition, where the denial of treatment causes plaintiff to suffer a permanent loss
or life-long handicap, the medical need is considered serious. See Harrison v.
Barkley, 219 F.3d 132, 136 (2d Cir. 2000).
With regard to the second prong of Deliberate indifference requires the
prisoner “to prove that the prison official knew of and disregarded the prisoner's
serious medical needs.” Chance, 143 F.3d at 702. Thus, prison officials must be
“intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104. A
difference of opinion between a prisoner and prison officials regarding medical
treatment does not, as a matter of law, constitute deliberate indifference. Chance,
26
143 F.3d at 703. “Nor does the fact that an inmate feels that he did not get the
level of medical attention he deserved, or that he might prefer an alternative
treatment, support a constitutional claim.” Sonds v. St. Barnabas Hosp.
Correctional Health Services, 151 F. Supp. 2d 303, 311 (S.D.N.Y.2001) (citing Dean
v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986)).
In this case, the plaintiff alleges that defendants Arrias, Benner, Furey,
Griffin, Blanchette and Lasrove intentionally denied him access to his
medications on many occasions. See, e.g. Dkt. 17, p. 27, Dkt. 17-1 pp.3, 17, 34-35,
44. The plaintiff also claims that he was transferred frequently and that such
relocations adversely affected his health and caused medication mix-ups. [Dkt.
17-1, p. 10, 17-2, p.35]. Furthermore, he claims that he experienced sleep
deprivation and anxiety attacks as a result of medication denial. [Dkt. #17. P. 44].
Finally, the plaintiff claims that the defendants downplayed his medical needs.
[Dkt. #17, pp. 44-45].
Although the defendants do allege that the plaintiff refused to take his
medications on several occasions (Def. Mem. 34), the Court finds that the plaintiff
has alleged sufficient facts to proceed against defendants Arrias, Benner, Furey,
Griffin, Blanchette and Lasrove on the claims of deliberate indifference to medical
and mental health needs.
E.
Due Process Claims
While “prisoners do not shed all constitutional rights at the prison gate,
lawful incarceration brings about the necessary withdrawal or limitation of many
27
privileges and rights, a retraction justified by the considerations underlying our
penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995)(citations omitted).
Inmates have no right to be incarcerated at any particular institution. Meachum v.
Fano, 427 U.S. 215, 224-25 (1976); See also Prins v. Coughlin, 76 F.3d 504, 507 (2d
Cir. 1996). The Court has held that there is “no due process protection where
required upon the discretionary transfer of state prisoners to a substantially less
agreeable prison, even where that transfer visited a ‘grievous loss’ upon the
inmate.” Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Without any cognizable
property or liberty interest, the plaintiff simply cannot invoke the protections of
due process. See Board of Regents v. Roth, 408 U.S. 564, 571 (1972); Dorfmont v.
Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert denied, 499 U.S. 905 (1991).
In this case, Mr. Parks claims, in part, that he has a right to be housed in a
single cell and in a particular facility. To the extent that his claim is a request for
a discretionary housing circumstance, the defendant’s motion to dismiss must be
granted as to all defendants.
F.
ADA Claims
The plaintiff asserts a violation of rights protected under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12132. In his complaint, he alleges that
he suffers from the following conditions: anxiety, HIV, hepatitis C and a head
injury. He claims the defendants Arrias, Benner, Furey, Griffin, Blanchette and
Lasrove denied or conspired to deny him proper treatment for these medical
conditions.
28
The State of Connecticut is a public entity within the meaning of the ADA.
See 42 U.S.C. § 12131(1)(A)(defining public entity to include any state or local
government). The plaintiff has not, however, named the State of Connecticut as a
defendant. The Second Circuit has recognized that a valid ADA claim may be
stated against a state official in his official capacity. See Henrietta D. v.
Bloomberg, 331 F.3d 261, 289 (2d Cir. 2003). Specific public employees, however,
are not included within the definition of public entity. Thus, Title II of the ADA
does not “provide[] for individual capacity suits against state officials.” See
Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir.
2001).
To state a claim under Title II, which applies to inmates in state prisons,
see United States v. Georgia, 546 U.S. 151, 153, 126 S.Ct. 877, 163 L.Ed.2d 650
(2006), a prisoner must show: 1) “he is a ‘qualified individual’ with a disability”; 2)
“he was excluded from participation in a public entity's services, programs or
activities or was otherwise discriminated against by a public entity”; and 3) “such
exclusion or discrimination was due to his disability.” Phelan v. Thomas, 439 F.
App'x 48, 50 (2d Cir.2011) (citing Hargrave v. Vermont, 340 F.3d 27, 34–35 (2d
Cir.2003)); see 42 U.S.C. § 12132.
Construed liberally, Mr. Parks claims that he is disabled on several
accounts and he alleges that the defendants denied him his medications and
repeatedly relocated him and, thus exacerbated his ailments. Furthermore, he
alleges that the defendants downplayed his medical needs. The Court therefore
finds that these claims, although in artfully pled, are sufficient to at least provide
29
Mr. Parks an opportunity to amend. See Shomo v. City of New York, 579 F.3d 176
(2d Cir. 2009)(reversing the district court’s denial of pro se plaintiff’s ADA claims
on the grounds that his “disorganized” pleadings were sufficient for him to
survive defendant’s motion to dismiss). The motion to dismiss is, therefore
denied and plaintiff’s ADA claims against defendants Arrias, Benner, Furey,
Griffin, Blanchette and Lasrove in their official capacities will proceed at this time.
G.
Qualified Immunity
The doctrine of qualified immunity protects government officials from
liability for damages caused by the performance of discretionary official
functions if their conduct does not violate a clearly established right of which a
reasonable person would have been aware. See Zellner v. Summerlin, 494 F.3d
344, 367 (2d Cir. 2007).
When considering a claim of qualified immunity, the Court considers two
questions: first, whether, construing the facts in favor of the non-moving party,
there is a violation of a constitutionally protected right; and second, whether,
considering the facts of the case before it, that right was clearly established at
the time of the incident. Qualified immunity is warranted unless the state
official’s conduct violated a clearly established constitutional right. See Pearson
v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 813, 815-16 (2009) (setting forth qualified
immunity test and holding that a court need not consider the questions in any
particular order). To evaluate whether a right is clearly established, the Court
must determine whether it would be clear to a reasonable correctional official that
30
his conduct in these circumstances was unlawful. See Saucier v. Katz, 533 U.S.
194, 202 (2001). The analysis focuses on cases from the Supreme Court and
Second Circuit. See Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996).
The court finds that the defendants Lantz, Choniski, Rell, B. Murphy,
Semple, Berrios, Falcone, and Ralliford are entitled to qualified immunity even
under the most liberal construction of the plaintiff’s complaint. Therefore, the
claims against these defendants are to be dismissed. With respect to defendants
Arias, Blanchette, Furey, Benner, Lasrove and Griffin, the defendants’ motion is
denied as plaintiff has alleged facts sufficient for a finding that a constitutionally
protected right was violated.
H.
State Law Claims
Plaintiff also asserts violations of Connecticut statutes and the Connecticut
Constitution. Supplemental or pendent jurisdiction is a matter of discretion, not
of right. See United Mine Workers v. Gibbs, 383 U.S. 715, 715-26 (1966).
Defendants argue that the court should decline to exercise supplemental
jurisdiction over those claims. Where all federal claims have been dismissed
before trial, pendent state claims should be dismissed without prejudice and left
for resolution by the state courts. See 28 U.S.C. § 1367(c)(3); Giordano v. City of
New York, 274 F.3d 740, 754 (2d Cir. 2001) (collecting cases). Because the court
has dismissed all of plaintiff’s federal law claims against defendants Lantz,
Choinski, Rell, Brian Murphy, Semple, Sieminski, Falcone, Berrios and Ralliford, it
31
will not exercise supplemental jurisdiction over any state law claims against
those defendants. The motion to dismiss is granted on this ground.
IV.
CONCLUSION
Defendant’s Motion to Dismiss [Doc. #86] is GRANTED in part and DENIED
in part.
IT IS SO ORDERED.
__________/s/____________
Vanessa L. Bryant
United States District Judge
Dated at Hartford Connecticut: March 28, 2010.
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?