Ziemba v. Lynch et al

Filing 85

RULING on Defendants' Motion to Dismiss, granting in part and denying in part 31 Motion to Dismiss. Signed by Judge Stefan R. Underhill on 9/17/13. (Sbalbi, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DUANE ZIEMBA
v.

CASE NO. 3:11cv974(SRU)

ANN LYNCH, ET AL.
RULING ON DEFENDANTS’ MOTION TO DISMISS
The plaintiff, Duane Ziemba, formerly incarcerated at Corrigan Correctional Institution, filed
this action pro se under 42 U.S.C. §§ 1983 and 1986 against Assistant Attorney General Ann E.
Lynch, Warden Anthony Colletti, Acting Commissioner Brian K. Murphy, Deputy Commissioner
Mark Strange, District Administrator Michael Lajoie, Captain Robert Judd, Lieutenants Marilyn
Butler, Fred White and Christian Leva, Correctional Officers Jeffrey Wing, Christopher Hanney,
David Yother, William Delaney, Peter Gingras, Nathan Cowser, James Turner, Thomas Fortin,
Santo Terranova, Michael Bigelow, Bill Bessette, Joseph Iozzia, Joshua Koniecko and Todd
LaPlace and Nurses Chuck Evans and Ramerez in their individual capacities. On November 21,
2011, the court concluded that the First, Eighth and Fourteenth Amendment claims as well as state
law claims should proceed against the defendants. Defendants Lynch, Murphy, Strange, Lajoie and
Colletti move to dismiss the claims against them. For the reasons set forth below, the motion is
granted in part and denied in part.
I. Standard of Review
When considering a motion to dismiss for failure to state a claim upon which relief may be
granted, 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, 556 U.S.
662, 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. 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). In its review of a motion to dismiss, the court may consider “only the facts
alleged in the pleadings, documents attached as exhibits or incorporated by reference in the
pleadings and matters of which judicial notice may be taken.” Samuels v. Air Transport Local 504,
992 F.2d 12, 15 (2d Cir. 1993).
II.

Facts1
The plaintiff alleges that on July 14, 2009 in a visiting room at Corrigan Correctional

1

The facts are taken from the Complaint.
2

Institution, Assistant Attorney General Ann Lynch deposed him in connection with another federal
lawsuit, Ziemba v. Murphy, et al., Case No. 3:08cv1090(MRK). During the deposition,
Correctional Officer Wing, who was present in the room for safety and security reasons, allegedly
took a step towards the plaintiff with closed fists in an attempt to assault him. The plaintiff claims
that Attorney Lynch failed to take any action to restrain or reprimand Officer Wing and refused to
replace him with another Correctional Officer after this incident.
Officer Wing escorted the plaintiff back to his cell after the deposition. Before the plaintiff
reached his cell, Officer Wing hit and pushed the plaintiff in the back and warned the plaintiff that if
he continued to litigate his lawsuits that he would suffer harm. Later that day, the plaintiff allegedly
sent letters to defendants Deputy Commissioner Strange, Warden Colletti and Commissioner
Murphy regarding the alleged assaultive conduct by Officer Wing during the deposition and Officer
Wing’s threats after the deposition and requested that he be immediately transferred to another
prison for his own safety.
On July 24, 2009, the plaintiff allegedly filed a grievance addressed to Deputy
Commissioner Strange, Warden Colletti and Commissioner Murphy. In the grievance, the plaintiff
described the alleged assaultive conduct by Officer Wing during the deposition and Officer Wing’s
threats after the deposition. The plaintiff requested that he be immediately transferred to another
prison for his own safety, an investigation of the incidents be undertaken and that Officer Wing be
disciplined for his conduct.
On July 28, 2009, the plaintiff allegedly sent letters to Deputy Commissioner Strange,
Warden Colletti and Commissioner Murphy regarding the alleged assaultive conduct by Officer
Wing during the deposition and Officer Wing’s threats after the deposition. The plaintiff also

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alleged that Counselor Meigs and defendants Butler and White had threatened him. The plaintiff
requested that he be immediately transferred to another prison for his own safety and that an
investigation be undertaken.
On August 12, 2009, the plaintiff allegedly sent letters to Deputy Commissioner Strange,
Warden Colletti and Commissioner Murphy claiming that Officer Wing had directed him to drop all
of his lawsuits against the Department of Correction. The plaintiff requested that he be immediately
transferred to another prison for his own safety and that an investigation be undertaken.
On August 20, 2009, Attorney Lynch returned to Corrigan to continue the plaintiff’s
deposition. The plaintiff made a statement on the record claiming that his safety was is in danger
and then refused to continue with the deposition.
The plaintiff alleges that on September 1, 2009, Attorney Lynch, Captain Judd, Lieutenants
Butler and White and Officers Wing and Hanney were responsible for having an order issued that he
report to a lieutenant’s office. Once he reached the office, Captain Judd and Lieutenant Butler
ordered the plaintiff to a secluded back room. Captain Judd was hostile towards the plaintiff and
asked whether he would drop all of his lawsuits against the Department of Correction. When the
plaintiff replied no, Captain Judd and Officers Wing and Hanney punched and kicked the plaintiff
repeatedly and smashed his glasses. Lieutenant Butler sprayed the plaintiff in the face with a
chemical agent. The plaintiff lost consciousness at times during the alleged beating.
Correctional Officers Leva, Yother, Delaney, Cowser, Bigelow, Iozzia and Koniecko arrived
at the scene in response to the Code Orange initiated by a correctional employee. These defendants
either joined in the beating or failed to intercede to stop it. After the defendants ceased assaulting
the plaintiff, they applied handcuffs to the plaintiff’s wrists. The cuffs were allegedly applied so

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tightly that the plaintiff’s blood circulation was cut off and he suffered nerve damage.
Because the plaintiff was unable to walk, correctional employees transported the plaintiff to
the medical unit via stretcher and placed him in Cell 113. The defendants refused to properly
decontaminate the plaintiff from the effects of the chemical agent.
Captain Judd, Correctional Officers Leva, Hanney, Yother, Delaney, Gingras, Cowser,
Turner, Fortin, Terranova, Bigelow, Bessette, Iozzia, Koniecko, LaPlace and Nurses Evans and
Ramerez applied four-point restraints to the plaintiff as he lay on the bunk in Cell 113. They used
excessive force when applying the restraints.
The plaintiff remained in restraints from 8:00 p.m. to 10:15 p.m. The plaintiff lost
consciousness during this time period. The plaintiff claims that at some point during this time
period, Captain Judd informed him that Attorney Lynch had advised correctional personnel to rough
him up a little and transfer him to segregation, but things got out of hand. He suggested that the use
of force would not have occurred had the plaintiff withdrawn his lawsuits.
Nurses Ramerez and Evans were deliberately indifferent to the plaintiff’s serious physical
injuries as well as the emotional trauma he had suffered. They refused to transfer the plaintiff to an
outside hospital for treatment of his injuries.
On September 2, 2009, the plaintiff attempted to commit suicide by cutting his left arm with
a razor blade. Medical personnel transferred the plaintiff to the University of Connecticut Health
Center for treatment of his various injuries. The plaintiff claims that Captain Judd, Correctional
Officers Leva, Hanney, Yother, Delaney, Gingras, Cowser, Turner, Fortin, Terranova, Bigelow,
Bessette, Iozzia, Koniecko, LaPlace and Nurses Evans and Ramerez knew he was at risk to harm
himself, but failed to take measures to prevent his suicide attempt.

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The plaintiff alleges that defendants Captain Judd, Correctional Officers Leva, Hanney,
Yother, Delaney, Gingras, Cowser, Turner, Fortin, Terranova, Bigelow, Bessette, Iozzia, Koniecko,
LaPlace and Nurses Evans and Ramerez falsified their incident reports and other records relating to
the two incidents that occurred on September 1, 2009. Captain Judd and Correctional Officer Leva
lied regarding the video-cameras used to film the incidents. They claimed that both video-cameras
had malfunctioned, but in fact one had functioned properly.
III.

Discussion
The defendants move to dismiss on four grounds. They argue that: (1) the plaintiff has

failed to state a claim under section 1983 against defendant Lynch; (2) the plaintiff has failed to
allege the personal involvement of defendants Murphy, Lajoie, Strange and Colletti in the alleged
violations of his constitutional rights; (3) they are entitled to qualified immunity; and (4) the
negligence claims against all defendants are barred by Connecticut General Statutes § 4-165.
A.

Absolute Immunity

The defendants contend that the claims against Attorney Lynch are barred by absolute
immunity because all of the actions described in the complaint were taken in defendant Lynch’s
capacity as an Assistant Attorney General. The plaintiff argues that defendant Lynch’s actions are
not entitled to absolute or qualified immunity because they were not closely related to her duties as
counsel for the State of Connecticut Department of Correction and were divorced from the judicial
process.
“Absolute immunity is of a rare and exceptional character.” Barrett v. United States, 798
F.2d 565, 571 (2d Cir. 1986). In determining whether state officials are entitled to absolute
immunity, Courts look at “the nature of the function performed, not the identity of the actor who

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performed it.” Forrester v. White, 484 U.S. 219, 229 (1988). The Supreme Court has held that state
prosecutors are afforded absolute immunity for all actions arising from conduct “intimately
associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430
(1976). The Second Circuit has extended the absolute immunity of prosecutors to state assistant
attorneys general defending civil actions against the state and state employees. See Barrett v. United
States, 798 F.2d 565, 569-70, 572-73 (2d Cir. 1986) (affirming, under federal law, the absoluteimmunity dismissal of a defense attorney for the State of New York who “on behalf of the State of
New York during the course of and in connection with ongoing litigation,” had withheld certain
information from the plaintiff). An official seeking absolute immunity bears the burden of showing
that such immunity is warranted for the function in question.” Burns v. Reed, 500 U.S. 478, 486-87
(1991).
The plaintiff claims that during his deposition held on July 14, 2009, in connection with
Ziemba v. Murphy, et al., Case No. 3:08cv1090(MRK), defendant Lynch failed to take any action
against alleged improper conduct by defendant Wing who was present in the room in which the
deposition was conducted. In addition, during the continuation of the plaintiff’s deposition on
August 20, 2009, he informed defendant Lynch about threats by defendant Wing and other
Department of Correction employees, but defendant Lynch took no action to investigate these
allegations.
The plaintiff also claims that at some point, defendant Lynch instructed defendant Judd and
other defendants to rough him up and transfer him to segregation in retaliation for his filing civil
lawsuits against the Department of Correction. The plaintiff contends that in response to this
alleged instruction by defendant Lynch, on September 1, 2009, defendants Judd, Butler, Wing, and

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Hanney used excessive force against him while defendants Leva, Yother, Delaney, Cowser,
Bigelow, Iozzia and Koniecko looked on.
The defendants argue that the claims against defendant Lynch are barred on the basis of
absolute immunity to which she is entitled as an Assistant Attorney General. The docket sheet in
Ziemba v. Murphy, et al., Case No. 3:08cv1090(MRK) reflects that on June 22, 2009, defendant
Lynch sought leave to depose the plaintiff on July 14, 2009, and on further dates as necessary.
Defendant Lynch also requested that a correctional officer be present during the deposition for
safety and security reasons. On June 25, 2009, the Court granted the motion in all respects and
noted that a correctional officer would be present at the deposition.
Deposing the plaintiff in connection with a civil lawsuit constitutes a traditional function of
an advocate for the State of Connecticut Department of Correction and is part of the preparation of a
case for trial. Furthermore, defendant Wing’s presence at the deposition had been authorized by the
Court. The decision of defendant Lynch to decline to replace defendant Wing with another
Correctional Officer after defendant Wing allegedly took a step towards the plaintiff in a threatening
manner during the deposition was made in her role as an advocate on behalf of Department of
Correction defendants. Thus, defendant Lynch is entitled to absolute immunity with regard to her
conduct during the July 14, 2009 deposition of the plaintiff.
Furthermore, the plaintiff’s claim that defendant Lynch failed to investigate the allegations
that he made during the continuation of his deposition on August 20, 2009 regarding threats by
defendant Wing and other correctional employees lacks an arguable legal basis. Assistant Attorneys
General are appointed pursuant to Conn. Gen. Stat. § 3-125 by the Attorney General of the State of
Connecticut, who is an elected official. See Const. art. Fourth, § 1. The Commissioner of

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Correction, who is appointed by the Governor, appoints employees of the Department of Correction.
See Conn. Gen. Stat. §§ 4-6, 18-80. The Commissioner of Correction is vested with the power to
manage and supervise his or her employees. See Conn. Gen. Stat. § 18-81.
Assistant Attorney General Lynch’s position as counsel for the Department of Correction
and its employees in civil actions filed by the plaintiff "does not vest [her] with authority to regulate
or direct the way [her] clients conduct their duties." See Anderson v. Lynch, Civil No. 3:00cv2414
(RNC), slip. op. at 3 (D. Conn. Jul. 23, 2001) (citing Torascio v. Murray, 862 F. Supp. 1482, 1495
(E.D. Va. 1994) (rev’d on other grounds) ("The Attorney General’s interaction with the Department
of Corrections is limited to providing legal services and advice."); Feliciano v. DuBois, 846 F.
Supp. 1033, 1045 (D. Mass. 1994) (governor and attorney general have no supervisory
responsibility for acts of correctional officers); Meade v. Grubbs, 841 F. 2d 1512, 1528 (10th Cir.
1988) (affirming dismissal of, among others, state attorney general because he had no "statutory
authority over the conduct of [the] deputy sheriffs" alleged to have used excessive force)). Because
Assistant Attorney General Lynch has no supervisory authority over the conduct of other defendants
and cannot be held liable for their actions, the plaintiff’s claims that Attorney Lynch, as counsel for
the State of Connecticut Department of Correction in civil matters, failed to take any action in
response to his request for an investigation of threats made by the defendants in this action are
dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The alleged instruction by defendant Lynch to harm the plaintiff in retaliation for his filing
lawsuits does not constitute conduct that is intimately or closely associated with the judicial process
or part of the regular advocacy functions of an assistant attorney general defending state officials in
prisoner civil rights litigation. Thus, the court concludes that defendant Lynch has not met her

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burden of demonstrating that she is entitled to absolute immunity with regard to that claim.
Accordingly, the motion to dismiss is granted with respect to the claims against defendant Lynch
related to the July 14, 2009 deposition and denied with respect to the claims related to instruction on
the use of force against the plaintiff and the claims related to the August 20, 2009 deposition is
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
B.

Implausible Claims

The defendants offer a second argument for dismissal of all claims against defendant Lynch.
They contend that the claims should be dismissed as implausible.
In their memorandum in support of the motion to dismiss, the defendants describe the
allegation that, prior to September 1, 2009, defendant Lynch instructed defendant Judd and other
defendants to rough him up and transfer him to segregation as “a most implausible event.” (See
Defs.’ Mem. Support Mot. Dismiss at 6.) The defendants contend that "[i]t stretches the bounds of
credulity to allege that the correctional defendants would viciously assault the plaintiff at the request
of AAG Lynch or that she would make the request or instruction in the first place, and stretches
them even more to allege that defendant Judd would then so inform the plaintiff." (See id).
In their discussion of this argument, the defendants simply state that, based on the holding in
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the allegations against defendant Lynch should be dismissed
as implausible. The defendants in effect are arguing that the claims against defendant Lynch should
be dismissed because they are not to be believed or are not true.
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court made it clear
that in considering a motion to dismiss, a court must proceed “on the assumption that all allegations
in the complaint are true (even if doubtful in fact).” Id. at 555 (citing Neitzke v. Williams, 490 U.S.

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319, 327 (1989) (“rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of
a complaint’s factual allegations”). Thus, “[a] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very
remote or unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The defendants argument that the remaining claim against defendant Lynch is not plausible
because it is not believable is without merit. The court must accept the factual allegations in the
complaint as true when deciding a motion to dismiss. See Iqbal, 556 U.S. at 678. The plaintiff’s
allegations that defendant Judd and other defendants used excessive force against him twice on
September 1, 2009, in response to defendant Lynch’s prior instructions to rough him up are offered
in support the plaintiff’s claims that defendant Lynch was deliberately indifferent to his safety and
engaged in action that constituted retaliation for plaintiff’s filing lawsuits against the Department of
Correction. Accordingly, the remaining claim against defendant Lynch will not be dismissed as
implausible.
C.

Personal Involvement

Defendants Strange, Colletti, Murphy and Lajoie argue that the claims against them should
be dismissed because the plaintiff has not alleged their personal involvement in the alleged use of
excessive force, failure to protect him from harm, and deliberate indifference to his safety and
medical and mental health needs. The plaintiff claims that he has sufficiently alleged the
involvement of these defendants.
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 Strange, Colletti, Murphy and Lajoie are supervisory officials. They

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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).
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 Iqbal, the Supreme Court held that a supervisor can be liable only “through the official's
own individual actions.” Id. at 676. That decision arguably casts doubt on the continued viability
of some of the categories for supervisory liability. The Second Circuit has yet to definitively
determine “which of the Colon factors remains a basis for establishing supervisory liability in the
wake of Iqbal and no clear consensus has emerged among the district courts within the circuit.”
Aguilar v. Immigration and Customs Enforcement Div. of the United States, 811 F. Supp. 2d 803,
814 (S.D.N.Y. 2011) (collecting cases). Because it is unclear whether Iqbal overrules or limits
Colon, the court will continue to apply the categories for supervisory liability set forth in Colon.
1.

Failure to Protect - Deliberate Indifference to Safety

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The plaintiff alleges that, prior to the use of force against him on September 1, 2009, he sent
written requests and a grievance to defendants Strange, Colletti and Murphy. The plaintiff
concedes, however, that he did not receive any responses to his letters or the grievance from any
one.
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 or grievance 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 defendant did not
respond to inmate's letters claiming lack of medical care was not enough to establish defendant's
personal involvement in alleged violations); Smart v. Goord, 441 F. Supp. 2d 631, 642-43
(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 defendants Strange, Colletti, and Murphy failed to respond to the plaintiff’s

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letters and grievance is insufficient to demonstrate the personal involvement of these defendants in
the alleged failure to protect him from the use of excessive force by other defendants. The motion
to dismiss is granted with respect to any failure to protect or deliberate indifference to safety claims
against defendants Strange, Colletti, and Murphy.
2.

Deliberate Indifference to Medical and Mental Health Needs

The plaintiff states in conclusory fashion that defendants Strange, Colletti, Murphy and
Lajoie were responsible, as supervisory officials, for the provision of medical and mental health care
to him after the alleged assaults. There are no facts to suggest that defendants Strange, Colletti,
Murphy and Lajoie were aware of or personally involved in the alleged denial of medical and
mental health care to him for the injuries he suffered when other defendants allegedly assaulted him.
Thus, the plaintiff has failed to state a plausible claim of deliberated indifference to his medical and
mental health needs. The motion to dismiss is granted with respect to the medical and mental health
care claims against defendants Strange, Colletti, Murphy and Lajoie.
3.

Remaining Claims

The plaintiff states that defendants Strange, Colletti, Murphy and Lajoie failed to supervise,
discipline, control and train their subordinates who were responsible for the violations of his
constitutional rights, failed to remedy wrongs, and created an unwritten policy and custom known as
the code of silence and an unwritten policy or custom to target and retaliate against inmates who file
and litigate lawsuits against the Department of Correction. These conclusory allegations are merely
legal conclusions that are not supported by factual allegations. See Iqbal, 556 U.S. at 681 (a court
need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements”); Twombly, 550 U.S. at 555 (courts “are not bound to accept as true a legal

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conclusion couched as a factual allegation”; entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action”) (quotation and citation
omitted)..
Thus, these allegations fail to state a plausible claim upon which relief may granted and are
insufficient to demonstrate the personal involvement of defendants in the alleged violations of the
plaintiff’s constitutional rights. The motion to dismiss is granted with respect to all federal claims
against defendants Strange, Colletti, Murphy and Lajoie.
D.

State Law Negligence Claims

The defendants argue that the plaintiff’s negligence claims are barred by the doctrine
statutory immunity. Connecticut General Statutes § 4-165(a) provides: “No state employee shall be
personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of
his or her duties or within the scope of his or her employment.” Thus, state employees are not
“personally liable for their negligent actions performed within the scope of their employment.”
Miller v. Egan, 265 Conn. 301, 319, 828 A.2d 549, 561 (2003). The motion to dismiss is granted
with respect to any state law claims based on the alleged negligence of the defendants.
E.

Qualified Immunity

Counsel for the defendants contends that defendant Lynch is entitled to qualified immunity
for her actions. Counsel has not clearly set forth her argument in the memorandum in support of the
motion to dismiss. Instead, she only includes the legal standard for establishing qualified immunity
and, in a conclusory manner, states that the claims against defendant Lynch are subject to dismissal
based on the law of qualified immunity. Because counsel has not adequately briefed this argument,
the motion to dismiss is denied to the extent it relies on a claim of qualified immunity. Counsel

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may renew this claim on a motion for summary judgment or at trial.
F.

Section 1986 Claim

In addition to asserting claims under Section 1983, the plaintiff purports to file this action
pursuant to 42 U.S.C. § 1986. Section 1986 provides no substantive rights; it provides a remedy for
the violation of section 1985. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 222 n.28 (1970)
(Brennan, J., concurring in part and dissenting in part). Thus, a prerequisite for an actionable claim
under section 1986 is a viable claim under section 1985.
The first two subsections of 42 U.S.C. § 1985 clearly are not relevant to this action. Section
1985(1) prohibits conspiracies to prevent federal officials from performing their duties and section
1985(2) prohibits conspiracies intending to deter witnesses from participating in state or federal
judicial proceedings. The plaintiff is not a federal official and his claims are not related to
participation of witnesses in judicial proceedings.
In order to state a claim under section 1985(3), plaintiff must allege: (1) the defendants were
part of a conspiracy; (2) the purpose of the conspiracy was to deprive a person or class of persons of
the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt
act taken in furtherance of the conspiracy; and (4) an injury to his person or property, or a
deprivation of a right or privilege. See Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971).
Importantly, the plaintiff must show that the conspiracy was motivated by a “racial, or perhaps
otherwise class-based invidiously discriminatory animus.” Id. at 102. Section 1985(3) may not be
construed as a “general federal tort law”; it does not provide a cause of action based on the denial of
due process or other constitutional rights. See id. at 101-02.
The plaintiff only generally asserts that the defendants conspired to deprive him of

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constitutional rights. Furthermore, the plaintiff does not allege that the actions of any defendant
were taken because of his race or other class-based discriminatory animus. Thus, the plaintiff fails
to state a claim cognizable under section 1985(3). Because the plaintiff has not stated a section
1985 claim, his section 1986 claim is not actionable and is dismissed. See 28 U.S.C. §
1915(e)(2)(B)(ii).
G.

Declaratory Relief

The plaintiff seeks a declaration that the defendants violated his federal constitutional and
statutory rights as well as his rights under Connecticut law. Declaratory relief is intended to enable
parties to adjudicate claims before either side suffers great harm. See In re Combustible Equip.
Assoc., 838 F.2d 35, 37 (2d Cir. 1988). Declaratory relief operates prospectively. Thus, it is
inappropriate for prior acts because damages have already accrued. See National Union Fire Ins.
Co. of Pittsburgh, Pa. v. International Wire Group, Inc., No. 02 Civ. 10338, 2003 WL 21277114,
At *5 (S.D.N.Y. June 2, 2003). The incidents that give rise to this action took place during 2009
when the plaintiff was incarcerated at Corrigan Correctional Institution. Any violations of the
plaintiff’s rights occurred over three years ago and will be compensated by his requested monetary
damages should he prevail in this action. The plaintiff has not described circumstances under which
a declaratory judgment will govern the parties’ future interactions. Accordingly, declaratory relief is
not appropriate. The request for declaratory relief is dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii).

IV.

Conclusion
The Motion to Dismiss [Doc. No. 31] is GRANTED with respect to all federal claims

against defendants Strange, Colletti, Murphy and Lajoie, the claim against defendant Lynch

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pertaining to the plaintiff’s July 14, 2009 deposition, and the state law claims of negligence and
negligent infliction of emotional distress against all defendants. The claim against defendant Lynch
pertaining to the plaintiff’s August 20, 2009 deposition, the claims pursuant to 42 U.S.C. § 1986
against all defendants and the request for declaratory relief from all defendants are DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Motion to Dismiss [Doc. No. 31] is DENIED with
respect to the claim against defendant Lynch that defendant Judd and other defendants used
excessive force against the plaintiff on September 1, 2009 in response to her prior instruction to
rough up the plaintiff and transfer him to segregation in retaliation for his filing civil lawsuits
against the Department of Correction.
Accordingly, section 1983 claims remain against defendant Lynch as well as defendants
Judd, Butler, White, Leva, Wing, Hanney, Yother, Delaney, Gingras, Cowser, Turner, Fortin,
Terranova, Bigelow, Bessette, Iozzia, Koniecko, LaPlace, Evans and Ramerez. In addition, the
claims brought under the Connecticut Constitution as well as the state law claims of intentional
infliction of emotional distress and battery remain pending against all defendants.
SO ORDERED this 17th day of September 2013, at Bridgeport, Connecticut.

/s/ Stefan R. Underhill
STEFAN R. UNDERHILL
UNITED STATES DISTRICT JUDGE

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