Urbano v. Murphy et al

Filing 4

PRISCS-INITIAL REVIEW ORDER DISMISSING CASE re 1 Complaint filed by Michael Edward Urbano, The Clerk is directed to enter judgment for the defendants and close this case. Signed by Judge Alvin W. Thompson on 12/23/2013.(Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL EDWARD URBANO,
Plaintiff,
PRISONER
CASE NO. 3:11-cv-806(AWT)

v.
BRIAN K. MURPHY, et al.,
Defendants.

INITIAL REVIEW ORDER
The plaintiff, who is incarcerated at MacDougall-Walker
Correctional Institution in Suffield, Connecticut (“MacDougallWalker”), has filed a complaint pro se under 42 U.S.C. § 1983.
He sues Warden Peter J. Murphy, Counselor Paskins, Captain Otero,
Lieutenant Alexander, District Administrator Michael P. Lajoie,
Commissioner of Correction Brian K. Murpy and Correctional
Officers Roy and McMahan.
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.
On October 14, 2010, as Counselor Paskins passed by the
plaintiff’s cell, she observed the plaintiff using the toilet
with a bed sheet over the lower half of his body.

She informed

the plaintiff that she would be issuing him a disciplinary ticket
for obstructing her view of his cell.

The plaintiff received the

disciplinary ticket later that day charging him with interfering
with safety and security.
On October 19, 2010, Correctional Officer McMahan, who had
been assigned to investigate the disciplinary report, interviewed

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the plaintiff.

The plaintiff informed Officer McMahan that the

disciplinary report mentioned an Inmate Morales.

Officer McMahan

indicated that the name Morales was a typographical error.

The

plaintiff refused to plead guilty to the ticket.
On October 25, 2010, a hearing was held by Lieutenant
Alexander concerning the disciplinary ticket.

The plaintiff

participated in the hearing with the assistance of an advocate.
After the hearing, Lieutenant Alexander found the plaintiff
guilty of interfering with safety and security and imposed
concurrent sanctions of one month loss of recreation and one
month loss of phone privileges.
guilty finding.

The plaintiff appealed the

On December 23, 2010, District Administrator

Lajoie found no serious due process failure and affirmed the
guilty finding.

The plaintiff states that after the guilty

finding, prison officials would not permit him to continue with
his vocational or educational program.
The plaintiff indicates that Captain Otero, Correctional
Officer Roy and Warden Murphy were employed at MacDougall-Walker.
He describes Captain Otero as his Housing Unit Manager and
Correctional Officer Roy as a member of the disciplinary
committee.

He indicates that Brian K. Murphy was the Acting

Commissioner of Correction for the State of Connecticut.

The

plaintiff does not otherwise mention these defendants in the body
of the complaint.

Thus, the plaintiff has not alleged that they

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violated his federally or constitutionally protected rights.

The

claims against defendants Otero, Roy, Peter J. Murphy and Brian
K. Murphy are dismissed.

See 28 U.S.C. § 1915A(b)(1).

In Sandin, the Supreme Court considered the requirements for
stating a claim for denial of procedural due process.

The

Supreme Court held that the plaintiff must demonstrate both a
protected liberty or property interest and that he had been
deprived of that interest without being afforded due process of
law.

To establish a protected liberty or property interest, the

plaintiff must show that the state created a liberty interest by
statute or regulation and that the deprivation of that interest
caused him to suffer an atypical and significant hardship.

See

Tellier v. Fields, 280 F.3d 69, 81 (2d Cir. 2000).
Sandin held that confinement in the restrictive housing unit
for thirty days for disciplinary reasons did not implicate a
constitutional liberty interest.

Sandin, 515 U.S. at 485-86.

Further, the Second Circuit has held that confinement in
restrictive housing for less that 101 days does not constitute an
atypical and significant hardship sufficient to state a claim
under Sandin.

See Lewis v. Sieminski, No. 3:08-CV-728(JCH), 2010

WL 3827991, at *6 (D. Conn. Sept. 22, 2010) (noting that “the
decisions in the Second Circuit are unanimous that keeplock or
[segregated housing unit] confinement of 30 days or less in New
York prisons is not ‘atypical or significant hardship’ under

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Sandin”); see also Frazier v. Coughlin, 81 F.3d 313, 317-18 (2d
Cir. 1996) (holding that 120 day confinement in segregation
followed by 30 day loss of recreation, commissary privileges,
packages and telephone use did not state a cognizable claim for
denial of due process); Principio v. McGinnis, No.
05-CV-0856A(F), 2007 WL 2344872, at *2 (W.D.N.Y. Aug. 15, 2007
(“Because plaintiff was sentenced to 60 days of keeplock with
loss of telephone, packages, recreation and conjugal visits, the
length of his sentence was not atypical and his conditions were
not so unusual as to rise above the Sandin threshold and,
therefore, he has failed to state a due process claim.”);
Nicholson v. Murphy, No. 3:02cv1815(MRK), 2003 WL 22909876, at
*10-11 (D. Conn. Sept. 19, 2003) (holding that confinement in
segregation under thirty days is not an atypical and significant
hardship).
The plaintiff attaches the disciplinary hearing summary
indicating that Lieutenant Alexander imposed concurrent sanctions
of a one month loss of recreation and a one month loss of phone
privileges.

As the plaintiff’s total sanctions were only thirty

days in length, they do not rise to the level of an atypical and
significant hardship.

Thus, the plaintiff has not alleged that

he suffered a deprivation of a protected liberty interest.
Furthermore, even if the plaintiff had demonstrated the
denial of a protected liberty interest, he does not assert that
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any of the defendants denied him the procedural protections
required by Wolff v. McDonnell, 418 U.S. 539, 561-70 (1974)
(outlining procedures due when inmate subject to disciplinary
sanctions), or Hewit v. Helms, 458 U.S. 460, 476 (1983)
(outlining procedures due when inmate placed in administrative
segregation pending a misconduct investigation).

Thus, the

plaintiff’s Fourteenth Amendment Due Process claims against
defendants Paskins, Alexander, McMahan and Lajoie must be
dismissed.

See 28 U.S.C. § 1915A(b)(1).

The plaintiff claims that he suffered violations of his
equal protection rights.

The Equal Protection Clause protects

prisoners from invidious racial discrimination.
Safely, 482 U.S. 78, 84 (1987).

See Turner v.

To prevail on an equal

protection claim of racial discrimination, the plaintiff must
show that he was treated differently from other similarly
situated individuals and the reason for the different treatment
was based on his race.
92, 103 (2d Cir. 2000).

See Diesel v. Town of Lewisboro, 232 F.3d
The Equal Protection Clause does not

mandate identical treatment for each individual; rather it
requires that similarly situated persons be treated the same.
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985).
The plaintiff does not mention his race.

Further, he does

not allege that was treated any differently than any other

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inmate.

Accordingly, the equal protection claim is being

dismissed.

See 28 U.S.C. § 1915A(b)(1).

The plaintiff asserts that defendant Paskins violated his
right to privacy when she looked in his cell and observed him
using the toilet.

The plaintiff concedes, however, that he had a

bed sheet covering the lower half of his body while he used the
toilet.
Although inmates do “retain certain fundamental rights of
privacy,” Houchins v. KOED, Inc., 438 U.S. 1, 5 n. 2(1978), these
rights may be restricted and retracted in order to “maintain[ ]
institutional security and preserve[ ] internal order and
discipline.”

Bell v. Wolfish, 441 U.S. 520, 546 (1979).

Cases

in this Circuit and elsewhere addressing inmates’ privacy rights
suggest that occasional, indirect, or brief viewing of a naked
prisoner by a guard of the opposite sex may be permissible, but
that regular, close and frequent viewing is prohibited.
e.g.,

See,

Thomas v. Shields, No. 92–6678, 981 F.2d 1252, 1992 WL

369506, at *1 (4th Cir. Sept. 15, 1992) (male plaintiff’s “right
to privacy was not violated by the occasional, inadvertent
encounter with female guards” who observed him in shower and on
toilet); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir.
1988) (“Our circuit’s law respects an incarcerated prisoner’s
right to bodily privacy, but has found that assigned positions of
female guards that require only infrequent and casual

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observation, or observation at a distance, and that are
reasonably related to prison needs are not so degrading as to
warrant court interference.”); Rogers v. Clark, 94–CV–0444, 1996
WL 328218, at *1 (W.D.N.Y. June 11, 1996) (court found no basis
for detainee’s claim that “female correctional officer glanced at
him as he completed taking a shower” violated his constitutional
right to privacy under either the Fourteenth or Fourth
Amendments);

Miles v. Bell, 621 F. Supp. 51, 67–68 (D. Conn.

1985) (finding no violation of inmates’ right to privacy because
inmates failed to demonstrate that female guards regularly and
frequently viewed them undressing or using the shower or toilet).
The plaintiff alleges that Counselor Paskins viewed him on
one occasion as he sat on the toilet with a sheet covering the
lower half of his body.

This single instance of being viewed by

a female correctional officer does not state a claim of a
violation of the plaintiff’s right to privacy.
claim is being dismissed.

Thus, the privacy

See 28 U.S.C. § 1915A(b)(1).
ORDERS

The court enters the following orders:
(1)

All federal claims against the defendants are hereby

DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).

The court

declines to exercise supplemental jurisdiction over any state law
claims.

See United Mine Workers v. Gibbs, 383 U.S. 715, 715-26

(1966) (holding that, where all federal claims have been
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dismissed before trial, pendent state claims should be dismissed
without prejudice and left for resolution by the state courts).
If the plaintiff chooses to appeal this decision, he may not do
so in forma pauperis, because such an appeal would not be taken
in good faith.
(2)

See 28 U.S.C. § 1915(a)(3).

The Pro Se Prisoner Litigation Office shall send a

courtesy copy of the Complaint and this Initial Review Order to
the Connecticut Attorney General and the Department of Correction
Legal Affairs Unit.
(3)

The Clerk is directed to enter judgment for the

defendants and close this case.
It is so ordered.
Dated this 23rd day of December 2013, at Hartford,
Connecticut.
/s/AWT
Alvin W. Thompson
United States District Judge

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