Gulino v. Crossdale et al
PRISCS-INITIAL REVIEW ORDER, Answer deadline updated for Syed Naqui to 11/1/2012; Charles Lee to 11/1/2012; Victor Shivey to 11/1/2012; Ruiz to 11/1/2012; Kevin McCrystal to 11/1/2012; Beth Crossdale to 11/1/2012; Peter J. Murphy to 11/1/2012; John F . Dupont, Jr to 11/1/2012; Anthony Coletti to 11/1/2012; Joann Tuttle to 11/1/2012., ( Discovery due by 3/25/2013, Dispositive Motions due by 4/24/2013), Requel Lightner, Evans and Jackson terminated.. Signed by Judge Janet C. Hall on 8/22/2012. (Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JASON P. GULINO,
BETH CROSSDALE, et al.,
PRISONER CASE NO.
AUGUST 22, 2012
INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at MacDougall Correctional Institution in
Suffield, Connecticut (“MacDougall”), has filed a complaint pro se under section 1983, of
title 42 of the United States Code. The plaintiff sues Counselor Supervisor Beth
Crossdale; Wardens Charles Lee, Anthony Coletti, and Peter Murphy; Correctional Officer
Evans; Lieutenant Jackson; Dentists Victor Shivey, John Dupont, and Joann Tuttle;
Physicians Ruiz and Syed Naqvi; Nurse Kevin McCrystal; and Health Services
Administrator Requel Lightner.
Pursuant to section 1915A(b) of title 28 of the United States Code, 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. This requirement applies both where the inmate has paid the filing fee and where he
is proceeding in forma pauperis. See Carr v. Dvorin, 171 F.3d 115 (2d Cir. 1999) (per
curiam). 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, 556 U.S. 662, 678 (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 in October 2004, at Cheshire Correctional Institution
(“Cheshire”), he refused to engage in a sexual relationship with Counselor Supervisor Beth
Crossdale. In January 2005, Supervisor Crossdale denied a request that the plaintiff be
considered for an inmate janitor position. In April 2005, prison officials transferred the
plaintiff to MacDougall for treatment of his hernia. In May 2006, the Security Division at
MacDougall removed the plaintiff from general population based on evidence that the
plaintiff had been involved in a sexual relationship with a female correctional officer at
On May 10, 2006, prison officials at MacDougall transferred the plaintiff to
Cheshire. In November 2007, Supervisor Crossdale denied the plaintiff’s request to be
considered for a vocation class and made it known that she would not permit the plaintiff
to engage in any prison programming.
The plaintiff complained to correctional staff and filed a grievance with Warden Lee
in February 2008, about Supervisor Crossdale’s attempts to sexually harass him and her
retaliatory conduct after he refused to engage in a relationship with her. Warden Lee
denied the grievance and failed to investigate the alleged actions of Supervisor Crossdale.
On February 25, 2009, Supervisor Crossdale increased the plaintiff’s risk level from
one to four, even though the plaintiff had not been found guilty of a Class A disciplinary
infraction. The plaintiff alleges this action was taken in retaliation for his complaints to
correctional staff and a grievance filed with Warden Lee.
The plaintiff claims that, during his incarceration at Corrigan Correctional Institution
(“Corrigan”) from June 10, 2009 to April 10, 2010, Warden Coletti discontinued all
recreational activities and he was unable to get sufficient exercise. In addition, Warden
Coletti decreased the food portion sizes for each inmate causing the plaintiff to lose
twenty-six pounds during the period from September 2009 until June 2010.
During the plaintiff’s confinement at Cheshire from May 2001 to May 2009, he
experienced pain in his face that radiated through his jaw and up to his temple. Drs.
Shivey, Dupont, and Ruiz examined the plaintiff, but failed to diagnose his condition
properly and offered no effective treatment for his pain.
At Corrigan in September 2009, Dr. Joann Tuttle examined the plaintiff and noted
that wisdom tooth number one was impacted and was pressing on tooth number two. Dr.
Tuttle offered the plaintiff medication for pain and an antibiotic to treat any possible
infection. Dr. Tuttle offered no further treatment for the plaintiff’s pain.
At MacDougall from October to December 2011, Dr. Naqvi failed to properly treat
the plaintiff’s symptoms of headaches, dizziness, weakness and fatigue as well as an
infected rodent bite on his leg. In December 2011, Nurse McCrystal discontinued a
medication prescribed for plaintiff’s skin condition in retaliation for the plaintiff’s complaints
about the medical treatment he had received from Dr. Naqvi.
The plaintiff alleges that on August 18, 2010, he received a disciplinary report and
was escorted to the restrictive housing unit by Lieutenant Jackson and Correctional Officer
Evans. At the time, he was wearing a religious object around his neck. Lieutenant
Jackson allegedly ordered Correctional Officer Evans to remove the religious article.
Officer Jackson removed the article and placed it in his pocket. In December 2010, the
plaintiff filed a lost property claim seeking $200.00 for the religious article allegedly
confiscated and lost by Officer Evans. In July 2011, the plaintiff filed a grievance
complaining that he had never received confirmation that the lost property claim had been
received by the property claims board. Warden Peter Murphy responded to the grievance,
indicating that the property claims board was not required to send a confirmation to an
inmate indicating his or her claim had been received.
The First Amendment to the United States Constitution guarantees the right to free
exercise of religion. See U.S. Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719
(2005). “Prisoners have long been understood to retain some measure of the
constitutional protection afforded by the First Amendment’s Free Exercise Clause.” Ford
v. McGinnis, 352 F.3d 582, 588 (2003) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)).
The plaintiff has not alleged the confiscation and loss of the religious article that he wore
around his neck interfered in any way with the exercise or practice of his religion. Thus,
the plaintiff has failed to state a claim for a violation of his First Amendment rights. The
First Amendment claim is dismissed. See 28 U.S.C. § 1915A(b)(1).
As a prisoner, plaintiff has no expectation of privacy in his cell. Thus, the Fourth
Amendment proscription against unreasonable searches and seizures does not apply.
See Hudson v. Palmer, 468 U.S. 517, 525-28 & n.8 (1984). The plaintiff’s unreasonable
seizure claim against defendants Jackson and Evans is dismissed. See 28 U.S.C. §
The plaintiff also claims that defendants Evans and Jackson confiscated his
religious item and failed to return it to him in violation of the Fourteenth Amendment. The
Supreme Court has found that the Due Process Clause of the Fourteenth Amendment is
not violated when a prison inmate loses personal belongings due to the negligent or
intentional actions of correctional officers if the state provides an adequate postdeprivation compensatory remedy. See Hudson, 468 U.S. at 533; Parratt v. Taylor, 451
U.S. 527, 543 (1981).
The State of Connecticut provides adequate remedies for the kind of deprivation
the plaintiff alleges. See State of Connecticut Department of Correction Administrative
Directive 9.6(16) (Oct. 1, 2011) (providing Department of Correction’s Lost Property Board
shall hear and determine any claim by an inmate who seeks compensation not to exceed
$3,500.00 for lost or damaged personal property and that inmate may present the property
claim to the Claims Commissioner after the Board denies the claim in whole or in part);
(Conn. Gen. Stat. § 4-141 et seq. (providing that claims for payment or refund of money by
the state may be presented to the Connecticut Claims Commission); see also, e.g., S. v.
Webb, 602 F. Supp. 2d 374, 386 (D. Conn. 2009) (finding Connecticut has sufficient postdeprivation remedies for seizures of property by state officials). These state remedies are
not rendered inadequate simply because plaintiff anticipates a more favorable remedy
under the federal system or that it may take a longer time under the state system before
his case is resolved. See Hudson, 468 U.S. at 535.
Thus, any federal claim that defendants Jackson and Evans lost or destroyed
personal property confiscated from the plaintiff on August 28, 2010, is not cognizable in
this action. The property claims against defendants Evans and Jackson are dismissed
pursuant to 28 U.S.C. § 1915A(b)(1).
The plaintiff claims that Warden Murphy inappropriately responded to his grievance
concerning his submission of a claim for the loss of his religious article to the Department
of Correction’s Property Board. On December 2, 2010, the plaintiff filed a property claim
regarding the loss of his religious article with the Department of Correction’s Property
Board pursuant to State of Connecticut Department of Correction Administrative Directive
9.6(16)B. In July 2011, the plaintiff attempted to contact a member of the Department of
Correction’s Property Board to complain that he had not received any acknowledgment
that his property claim had been received by the board. When he received no response to
his attempts to contact the Property Board, he filed an grievance. On August 3, 2011, in
response to the grievance, Warden Murphy informed the plaintiff that the Department of
Correction’s Property Board was not obligated to issue a notice confirming its receipt of a
property claim. State of Connecticut Department of Correction Administrative Directive 9.6
does not include a requirement that the Lost Property Board provide a receipt or
confirmation notice when a claim is filed. See Administrative Directive 9.6, Section 16,
http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0906.pdf. Thus, Warden Murphy did not err
when he explained this fact in his response to the plaintiff’s grievance.
At the time of Warden Murphy’s response, the Property Board still had
approximately four months within which to respond to the plaintiff’s property claim. See id.
at 9.6(16)E (Lost Property Board is permitted up to one year from the date of receipt of an
inmate’s lost property claim to render a decision). Furthermore, the plaintiff could have
filed a property claim with the State Claims Commissioner pursuant to Conn. Gen. Stat. §
4-147. Thus, Warden Murphy’s response to the plaintiff’s grievance is not evidence that
the State of Connecticut’s property claims procedures were inadequate. The property
claim against Warden Murphy is dismissed for failure to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915A(b)(1).
The plaintiff asserts that on November 4, 2011, he wrote an informal request to
Health Services Administrator Requel Lightner asking her to follow-up with Dr. Naqvi about
the results of blood tests performed in October 2011. A nurse intercepted this request and
responded to it herself. The plaintiff does not allege that Administrator Lightner ever
received his request.
On November 18, 2011, the plaintiff attempted to speak to Administrator Lightner
as she was leaving the medical unit. She responded that she was going home and did not
have time to listen to his complaints about rodent bites. The plaintiff does not assert that
he made any further attempts to contact Administrator Lightner.
Deliberate indifference by prison officials to a prisoner’s serious medical need
constitutes cruel and unusual punishment in violation of the Eighth Amendment. See
Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on such a claim, a plaintiff must
provide evidence of sufficiently harmful acts or omissions and intent to either deny or
unreasonably delay access to needed medical care or the wanton infliction of unnecessary
pain by prison personnel. See Id. at 104-06. “[N]ot every lapse in prison medical care will
rise to the level of a constitutional violation,” id.; rather, the conduct complained of must
“shock the conscience” or constitute a “barbarous act.” McCloud v. Delaney, 677 F. Supp.
230, 232 (S.D.N.Y. 1988) (citing United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d
The fact that a prisoner sent a letter to a supervisory official does not establish the
requisite personal involvement of the supervisory official. See Rivera v. Fischer, 655 F.
Supp. 2d 235, 238 (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). Thus, the plaintiff’s allegation that he sent a letter to
Administrator Lightner in early November 2011, but a nurse intercepted the letter and
responded to it herself, does not state a claim of involvement in the treatment of or
deliberate indifference to the plaintiff’s medical needs.
Even if the court assumes that the infection from the rodent bite was a serious
medical condition, the court concludes that the plaintiff has not alleged that Administrator
Lightner was deliberately indifferent to this medical need. The plaintiff mentioned his
infection from the rodent bite to Administrator Lightner as she was leaving the medical
unit. She stated she did not have time to consider the plaintiff’s rodent bite because she
was finished with her shift for the day. The conduct by Administrator Lightner constitutes,
as most, negligence. Mere negligence, however, will not support a section 1983 claim.
See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (“Eighth Amendment is not a
vehicle for bringing medical malpractice claims, nor a substitute for state tort law”). The
claims against Administrator Lightner are dismissed for failure to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915A(b)(1).
The court concludes that the remaining allegations in the complaint state plausible
claims of retaliation and deliberate indifference to medical and dental needs. Those
claims shall proceed against defendants Crossdale, Lee, Coletti, Shivey, Dupont, Ruiz,
Tuttle, Naqvi, Murphy, and McCrystal in their individual capacities. The claims against
these defendants in their official capacities are dismissed as barred by the Eleventh
Amendment. See 28 U.S.C. § 1915A(b)(2); 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
U.S. 332, 342 (1979) (section 1983 does not override a state’s Eleventh Amendment
The court enters the following orders:
All claims against defendants Lightner, Evans, and Jackson and the
property claim against defendant Murphy are DISMISSED for failure to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915A(b)(1). The claims for money
damages against defendants Crossdale, Lee, Coletti, Shivey, Dupont, Ruiz, Tuttle, Naqvi,
Murphy, and McCrystal in their official capacities are DISMISSED pursuant to 28 U.S.C. §
1915A(b)(2). The remaining retaliation and deliberate indifference to medical and dental
needs claims shall proceed against defendants Crossdale, Lee, Coletti, Shivey, Dupont,
Ruiz, Tuttle, Naqvi, Murphy and McCrystal in their individual capacities.
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 defendants Crossdale, Lee, Coletti, Shivey, Dupont, Ruiz, Tuttle, Naqvi,
Murphy and McCrystal 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 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
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.
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.
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.
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.
All motions for summary judgment shall be filed within eight months (240
days) from the date of this order.
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
Dated at Bridgeport, Connecticut this 22nd day of August, 2012.
__/s/ Janet C. Hall________
Janet C. Hall
United States District Judge
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