Klemonski v. Dept of Corr et al

Filing 21

ORDER granting 18 Defendants' Motion to Dismiss. See the attached Memorandum of Decision. Defendants Murphy and Lantz are dismissed from this case. The case will process only as to the Plaintiff's claims against Defendant Higgins. Signed by Judge Vanessa L. Bryant on 2/25/10. (Engel, J.)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

K E V IN KLEMONSKI, JR., P la in t iff , v. D E P AR T M E N T OF CORRECTION, et al., D e fe n d a n ts .

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CASE NO. 3 : 0 9 -c v -7 8 7 (VLB) F e b ru a ry 25, 2010

M E M O R AN D U M OF DECISION GRANTING DEFENDANTS' MOTION TO DISMISS T h e plaintiff, Kevin Klemonski, Jr., commenced this action pro se while in c a rc e ra te d . He named as defendants the Department of Correction, the U n iv e rs ity of Connecticut Health Center, and Connecticut state employees Gina H ig g in s , Brian Murphy and Theresa Lantz, alleging that they violated his u n s p e c ifie d constitutional rights in contravention of 42 U.S.C. § 1983 by subjecting h im to unconstitutional conditions of confinement and failing to provide him with p ro p e r medical care. On June 29, 2009, the Court dismissed all claims against d e fe n d a n ts Department of Correction and University of Connecticut Health Center p u rs u a n t to 28 U.S.C. § 1915A. Defendants Murphy and Lantz now move to dismiss th e claims against them on the ground that the plaintiff fails to allege facts d e m o n s tra tin g their involvement in circumstances giving rise to the plaintiff's c la im s . For the reasons that follow, the motion to dismiss is GRANTED. I. Standard of Review " U n d e r Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a `s h o rt and plain statement of the claim showing that the pleader is entitled to re lie f.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While Rule 8 does not

require detailed factual allegations, "[a] pleading that offers labels and conclusions o r a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual e n h a n c e m e n t.' To survive a motion to dismiss, a complaint must contain sufficient fa c tu a l matter, accepted as true, to `state a claim to relief that is plausible on its fa c e .' A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for th e misconduct alleged. The plausibility standard is not akin to a `probability re q u ire m e n t' but it asks for more than a sheer possibility that a defendant has a c te d unlawfully. Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility o f `entitlement to relief.'" Id. (internal citations omitted). In applying this p la u s ib ility standard, the Court liberally construes pro se complaints. See Harris v. M ills , 572 F.3d 66, 72 (2d Cir. 2009). II. Facts T h e complaint alleges the following facts. The Plaintiff claims that, on N o v e m b e r 12, 2008, he questioned correctional employee Powers regarding an a lle g e d clerical error that required him to post a $75,000 bond. C.S. Powers told him th a t he was delusional and sent him back to his housing unit. The following m o rn in g , he repeated his concerns to mental health staff members Nurse Sally and d e fe n d a n t Higgins. Defendant Higgins asked the plaintiff to sign a consent form to a llo w contact with the plaintiff's family members and offered the plaintiff

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medication, which he refused to take. The plaintiff alleges that "the two employees a t Uconn," presumably Nurse Sally and defendant Higgins, obtained medical in fo rm a tio n from his family, disseminated that information without his consent and u s e d the medical information to raise his mental health level from 1 to 5. The plaintiff, then a pretrial detainee, was subsequently transferred to Garner C o rre c tio n a l Institution and housed with mentally-ill inmates who had already been s e n te n c e d . On December 31, 2008, the plaintiff was attacked by another inmate. Captain Reily did not order a police investigation into the incident or take any d is c ip lin a ry action. Donna Palmiero did not mention his head injury in the incident re p o rt and, as a result, the plaintiff did not receive medical treatment. III. Discussion D e fe n d a n ts Murphy and Lantz move to dismiss the claims against them on th e basis that the plaintiff fails to allege facts stating cognizable claims against th e m . Defendants Murphy and Lantz are supervisory corrections officials. In an a c tio n filed pursuant to 42 U.S.C. § 1983, liability is imposed only upon the officials w h o caused the alleged constitutional violation. It is settled law in this Circuit that in a civil rights action for monetary damages against a defendant in his individual c a p a c ity, a plaintiff must demonstrate the defendant's direct or personal in v o lv e m e n t in the actions which are alleged to have caused the constitutional d e p riv a tio n . Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Because the doctrine of respondeat superior is inapplicable in section 1983 a c tio n s , supervisors are not automatically liable under section 1983 when their

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subordinates commit a constitutional tort. See Blyden v. Mancusi, 186 F.3d 252, 264 (2 d Cir. 1999). Instead, the plaintiff must prove supervisory liability by d e m o n s tra tin g one or more of the following five criteria: first, the defendant a c tu a lly and directly participated in the alleged acts; second, the defendant failed to re m e d y a wrong after being informed of the wrong through a report or appeal; third, th e defendant created or approved a policy or custom that sanctioned objectionable c o n d u c t which rose to the level of a constitutional violation or allowed such a policy o r custom to continue; fourth, the defendant was grossly negligent in the s u p e rv is io n of the correctional officers who committed the constitutional violation; a n d fifth, the defendant failed to act in response to information that unconstitutional a c ts were occurring. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). In a d d itio n , the plaintiff must demonstrate an affirmative causal link between the in a c tio n of the supervisory official and his injury. See Poe v. Leonard, 282 F.3d 123, 1 4 0 (2d Cir. 2002). Some of these criteria may have been called into question by the Supreme C o u rt. In Iqbal, the Court held that, "[a]bsent vicarious liability, each Government o ffic ia l, his or her title not withstanding, is only liable for his or her own m is c o n d u c t." 129 S. Ct. at 1949. Thus, Iqbal has arguably nullified the criteria im p o s in g supervisory liability where the supervisor knew of and acquiesced to a c o n s titu tio n a l violation committed by a subordinate, such that a supervisor can o n ly be held liable if he or she participated directly in the alleged constitutional v io la tio n or created a policy or custom under which unconstitutional practices

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occurred. See Sash v. United States, No, 08 Civ. 8332(AJP), 2009 WL 4824669, at *1 0 -*1 1 (S.D.N.Y. Dec. 15, 2009) (discussing and disagreeing with several district c o u rt decisions concluding that Iqbal has nullified several criteria for imposing s u p e rv is o ry liability because it established an "active conduct" standard). The S e c o n d Circuit has not yet addressed the effect of Iqbal on the standard for s u p e rv is o ry liability. This Court, however, need not resolve the issue. The plaintiff has not alleged a n y facts in his complaint relating to defendants Murphy and Lantz. He merely id e n tifie s them as defendants. Thus, the plaintiff has not satisfied any criteria for im p o s in g supervisory liability and appears to assert only a claim of respondeat s u p e r io r . In response to the motion to dismiss, the plaintiff submits several exhibits for th e Court to consider. In reviewing a motion to dismiss, the Court may consider " o n ly the facts alleged in the pleadings, documents attached as exhibits or in c o rp o ra te d by reference in the pleadings and matters of which judicial notice may b e taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993). However, Federal Rule of Civil Procedure 12(d) permits the Court to treat a motion to dismiss as a motion for summary judgment if the Court does not exclude matters o u ts id e the pleadings that are presented for the Court's consideration. The plaintiff provides nine exhibits: first, a June 2008 letter from the Deputy C h ie f Clerk in state court explaining that the plaintiff posted two bonds; second, a N o v e m b e r 2008 memorandum to the plaintiff from Deputy Warden Janet Sicilia

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explaining the mix-up with the plaintiff's bond; third, a second memorandum from D e p u ty Warden Sicilia resending the initial memorandum to the plaintiff in February 2 0 0 9 ; fourth, an April 2009 letter from the plaintiff to defendant Lantz expressing his c o n c e rn that he cannot receive adequate medical care because he filed lawsuits a g a in s t the University of Connecticut Health Center and medical and mental health c a re providers and noting that he filed a state habeas corpus action to address this is s u e ; fifth, a February 2009 letter to defendant Murphy describing the incident with th e bonds and his transfer and how he resolved the issue with the assistance of his a tto rn e y; sixth, a March 2009 letter to the plaintiff from defendant Murphy re s p o n d in g to letters to defendant Lantz; seventh, a January 2009 health grievance, p a rtia lly upheld, which resulted in the lowering of the plaintiff's mental health score a n d his return to the Hartford Correctional Center; eighth, a copy of his November 2 0 0 8 psychological evaluation; and ninth, a notation by defendant Higgins that she w o u ld attempt to obtain mental health information from the plaintiff's family. See D o c . #19. After reviewing these exhibits, the Court concludes that none of the e x h ib its show that defendants Lantz and Murphy participated in the incidents u n d e rlyin g the complaint or were aware of what had occurred until after the s itu a tio n that the plaintiff complains of had been resolved. Thus, the Court will e x c lu d e the exhibits and will not convert the motion to dismiss into a motion for s u m m a ry judgment. T h e plaintiff has alleged no facts in his complaint supporting a claim of s u p e rv is o ry liability against defendants Lantz and Murphy. Accordingly, the

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defendants' motion to dismiss is granted. The plaintiff is advised that if he wishes th e Court to consider the exhibits attached to his memorandum and can assert c o g n iz a b le claims against defendant Murphy and/or defendant Lantz, he must file a n amended complaint which includes a concise statement of the alleged wrongful c o n d u c t of Murphy and/or Lantz. He may attach the exhibits to his amended c o m p la in t. Because more than twenty-one days have passed since the defendants file d their motion to dismiss, the plaintiff cannot amend his complaint as of right. Written consent from the defendants or permission from the Court is required. See F e d . R. Civ. P. 15(a)(1) and (2). To obtain the Court's permission to amend his c o m p la in t, the plaintiff must file a motion for leave to amend and attach a copy of th e proposed amended complaint. In light of the age of this case, the Court' d e c is io n on a motion to amend the complaint will be influenced by the plaintiff's p ro m p tn e s s in filing such motion. IV . Conclusion T h e defendants' Motion to Dismiss [Doc. #18] is GRANTED. This case will p ro c e e d only as to the plaintiff's claims against defendant Higgins.

IT IS SO ORDERED.

/s/ Vanessa L. Bryant U n ite d States District Judge

Dated at Hartford, Connecticut: February 25, 2010.

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