Urbano v. Murphy et al
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,
CASE NO. 3:11-cv-806(AWT)
BRIAN K. MURPHY, et al.,
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.”
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).
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.”
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
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.
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
The plaintiff informed Officer McMahan that the
disciplinary report mentioned an Inmate Morales.
indicated that the name Morales was a typographical error.
plaintiff refused to plead guilty to the ticket.
On October 25, 2010, a hearing was held by Lieutenant
Alexander concerning the disciplinary ticket.
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.
The plaintiff appealed the
On December 23, 2010, District Administrator
Lajoie found no serious due process failure and affirmed the
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
He indicates that Brian K. Murphy was the Acting
Commissioner of Correction for the State of Connecticut.
plaintiff does not otherwise mention these defendants in the body
of the complaint.
Thus, the plaintiff has not alleged that they
violated his federally or constitutionally protected rights.
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.
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
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.
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
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
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
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
As the plaintiff’s total sanctions were only thirty
days in length, they do not rise to the level of an atypical and
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
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).
plaintiff’s Fourteenth Amendment Due Process claims against
defendants Paskins, Alexander, McMahan and Lajoie must be
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
The plaintiff does not mention his race.
Further, he does
not allege that was treated any differently than any other
Accordingly, the equal protection claim is being
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
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
Bell v. Wolfish, 441 U.S. 520, 546 (1979).
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.
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
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
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).
The court enters the following orders:
All federal claims against the defendants are hereby
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
declines to exercise supplemental jurisdiction over any state law
See United Mine Workers v. Gibbs, 383 U.S. 715, 715-26
(1966) (holding that, 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).
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.
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.
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,
Alvin W. Thompson
United States District Judge
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