Friedland v. Otero et al

Filing 4

PRISCS - INITIAL REVIEW ORDER, Answer updated for Wayne Choinski to 10/11/2011; John Kay to 10/11/2011; Fred Levesque to 10/11/2011; Otero to 10/11/2011., ( Discovery due by 3/1/2012, Dispositive Motions due by 4/2/2012). Signed by Judge Christopher F. Droney on 7/29/11. (Corriette, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DARRELL FRIEDLAND,
Plaintiff,
v.

PRISONER
CASE NO. 3:11-cv-606CFD)

LIEUTENANT OTERO, et al.,
Defendants.

INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at Corrigan-Radgowski Correctional
Institution in Uncasville, Connecticut, has filed a complaint pro se under 42 U.S.C. §
1983. The plaintiff sues Lieutenant Otero, Correctional Counselor John Kay, District
Administrator Wayne Choinski and Director of Offender Classification and Population
Management Fred Levesque.
Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil
complaints against governmental actors and “dismiss ... any portion of [a] complaint
[that] is frivolous, malicious, or fails to state a claim upon which relief may be granted,”
or that “seeks monetary relief from a defendant who is immune from such relief.” Id.
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Although detailed allegations are not required, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937,

1949 (2009) (internal quotation marks and citations omitted). A complaint that includes
only “‘labels and conclusions,’ ‘a formulaic recitation of the elements of a cause of
action’ or ‘naked assertion[s]’ devoid of ‘further factual enhancement,’ ” does not meet
the facial plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 557 (2007)). Although courts still have an obligation to liberally construe a pro se
complaint, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the complaint must
include sufficient factual allegations to meet the standard of facial plausibility.
The plaintiff alleges that on April 16, 2008, he was one of eleven inmates
traveling in a van back to Northern Correctional Institution (“Northern”) from the
Connecticut Superior Court in Rockville. The van was driven by Connecticut Judicial
Marshals and was equipped by cameras to enable the drivers to see what was going on
in the back of the van. At some point on the trip, someone covered the cameras.
Connecticut State Troopers then escorted the van to Walker Correctional Institution in
Suffield, Connecticut. Upon arrival, the Troopers noticed that someone had broken
through the metal partition in the middle of the van between two sets of prisoners. The
prisoners on the passenger side of the van were able to get across to the prisoners on
the driver’s side of the van. All the prisoners were removed from the van without
incident.
The State Troopers charged the plaintiff with criminal mischief and disorderly
conduct. The plaintiff was ultimately sentenced to thirty days of imprisonment to be
served concurrently to his current sentence and to pay restitution in the amount of
$585.00.
The Department of Correction issued the plaintiff a disciplinary report for
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attempted escape. Hearing Officer Otero assigned Counselor Kay to be the plaintiff’s
advocate. Counselor Kay failed to provide the plaintiff with the names of other inmates
in the van who could have been witnesses at the hearing and did not attend the hearing
with the plaintiff. On May 14, 2008, Hearing Officer Otero found the plaintiff guilty and
imposed the following sanctions: thirty days of punitive segregation, ninety days loss of
commissary and ninety days loss of telephone privileges. The plaintiff claims that
Officer Otero refused to provide him with the documentary evidence in support of the
guilty finding. District Administrator Choinski upheld the finding.
On May 15, 2008, Director of Offender Classification and Population
Management Levesque placed the plaintiff on high security status due to the attempted
escape charge. Defendant Levesque did not provide the plaintiff with a hearing prior to
his placement on high security status. As a result of his placement on high security
status, the plaintiff was subjected to the following conditions of confinement: automatic
mail review, movement to a new cell every ninety days, cell searches at least twice a
week, no out of cell movement without an escort, no contact social visits, no out of unit
work assignments. In addition, the plaintiff was returned to phase one of the Close
Custody program at Northern. During this program, the plaintiff was confined to his cell
twenty-three hours a day with one hour out his cell for recreation.
The plaintiff seeks monetary damages and injunctive relief. To the extent that
plaintiff sues the defendants in their official capacities, the claims for money damages
are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159 (1985)
(Eleventh Amendment, which protects the state from suits for monetary relief, also
protects state officials sued for damages in their official capacity); Quern v. Jordan, 440
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U.S. 332, 342 (1979) (Section 1983 does not override a state’s Eleventh Amendment
immunity). The claims for money damages against the defendants in their official
capacities are dismissed pursuant to 28 U.S.C. § 1915A(b)(2).
After reviewing the complaint, the court concludes that the case should proceed
at this time as to the Fourteenth Amendment Due Process claims against all
defendants in their individual capacities and against all defendants in their official
capacities to the extent that plaintiff seeks injunctive relief.
ORDERS
The court enters the following orders:
(1)

The claims against all defendants for monetary damages in their official

capacities are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(2). The claims in the
complaint shall proceed against all defendants in their individual capacities and against
all defendants in their official capacities to the extent that plaintiff seeks injunctive relief.
2)

Within fourteen (14) days of this order, the U.S. Marshals Service

shall serve the summons, a copy of the Complaint [doc. #1] and this Order on the
defendants in their official capacities by delivering the necessary documents in person
to the Office of the Attorney General, 55 Elm Street, Hartford, CT 06141.
(3)

Within fourteen (14) days of this Order, the Pro Se Prisoner Litigation

Office shall ascertain from the Department of Correction Office of Legal Affairs the
current work addresses for the defendants and mail waiver of service of process
request packets to each defendant in his or her individual capacity at his or her current
work address. On the thirty-fifth (35th) day after mailing, the Pro Se Office shall report

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to the court on the status of all waiver requests. If any defendant fails to return the
waiver request, the Clerk shall make arrangements for in-person service by the U.S.
Marshals Service and the defendant shall be required to pay the costs of such service
in accordance with Federal Rule of Civil Procedure 4(d).
(4)

The Pro Se Prisoner Litigation Office shall send a courtesy copy of the

complaint and this Order to the Connecticut Attorney General and the Department of
Correction Legal Affairs Unit.
(5)

The Pro Se Prisoner Litigation Office shall send written notice to the

plaintiff of the status of this action, along with a copy of this Order.
(6)

Defendants shall file their response to the complaint, either an answer or

motion to dismiss, within seventy (70) days from the date of this order. If the
defendants choose to file an answer, they shall admit or deny the allegations and
respond to the cognizable claims recited above. They may also include any and all
additional defenses permitted by the Federal Rules.
(7)

Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37,

shall be completed within seven months (210 days) from the date of this order.
Discovery requests need not be filed with the court.
(8)

All motions for summary judgment shall be filed within eight months (240

days) from the date of this order.
(9)

Pursuant to Local Civil Rule 7(a), a non-moving party must respond to a

dispositive motion within twenty-one (21) days of the date the motion was filed. If no
response is filed, or the response is not timely, the dispositive motion can be granted

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absent objection.
SO ORDERED.
Dated this 29th day of July, 2011, at Hartford, Connecticut.

/s/ Christopher F. Droney
Christopher F. Droney
United States District Judge

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