Gutierrez v. Arnone et al
PRISCS-INITIAL REVIEW ORDER, Leo Arnone and Esther Torres terminated., ( Discovery due by 11/30/2012, Dispositive Motions due by 12/31/2012), Answer updated for Don Cyr to 7/10/2012; Lauren Powers to 7/10/2012; Lynn Milling to 7/10/2012; Angel Quiros to 7/10/2012; Dennis Marinelli to 7/10/2012; Jason Cahill to 7/10/2012; Scott Peterson to 7/10/2012; Edward Maldonado to 7/10/2012.. Signed by Judge Vanessa L. Bryant on 4/30/2012. (Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LEO ARNONE, et al.,
Case No. 3:12-cv-603 (VLB)
April 30, 2012
INITIAL REVIEW ORDER
Plaintiff Jose Gutierrez, incarcerated and pro se, has filed a complaint
under 42 U.S.C. § 1983 (2000), against defendants Leo Arnone, Lynn Milling,
Esther Torres, Edward Maldonado, Don Cyr, Angel Quiros, Jason Cahill, Dennis
Marinelli, Scott Peterson and Lauren Powers. The defendants are named in their
individual and official capacities. The plaintiff alleges that the defendants caused
him to be confined at Northern Correctional Institution without a notice and
hearing and have continued to house him there without periodic reviews of the
appropriateness of continued administrative segregation placement.
Under 28 U.S.C. § 1915A (2000), the court must review prisoner civil
complaints and dismiss any portion of the complaint that is frivolous or
malicious, that 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.
Under the Federal Rules of Civil Procedure and Second Circuit precedent, a
pro se complaint is adequately pled if its allegations, liberally construed, could
“conceivably give rise to a viable claim.” Phillips v. Girdich, 408 F.3d 124, 130 (2d
Cir. 2005). The court must assume the truth of the allegations, and interpret them
liberally to “raise the strongest arguments [they] suggest.” Abbas v. Dixon, 480
F.3d 636, 639 (2d Cir. 2007). Although detailed allegations are not required, the
complaint must include sufficient facts to afford the defendants fair notice of the
claims and the grounds upon which they are based and to demonstrate a right to
relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007)). Conclusory
allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. But “‘[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.’” Boykin v.
KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S.
89, 94 (2007)).
The plaintiff alleges that, on March 14, 2011, defendant Torres, warden at
the Williard-Cybulski Correctional Institution, submitted a request to have him
transferred to administrative segregation. Defendant Milling approved the
request and the plaintiff was transferred to Northern Correctional Institution and
placed on administrative segregation. Twenty-eight days later, he received
notification of an administrative segregation hearing. The hearing was held thirty
days after the plaintiff’s transfer. The notice of decision does not identify what
evidence was relied upon or provide reasons for the determination that
administrative segregation placement was warranted. Since then, the
classification committee has continued the plaintiff on administrative segregation
status. The plaintiff compares the conditions at Northern Correctional Institution
with those he experienced at Willard-Cybulski Correctional Institution and argues
that the conditions in administrative segregation constitute an atypical and
The only allegation against defendant Torres is that she requested the
plaintiff’s transfer to administrative segregation. The plaintiff alleges no facts
suggesting that defendant Torres was the person responsible for scheduling the
administrative segregation hearing or conducting period reviews once the
plaintiff was designated to administrative segregation status. Research has
revealed no cases holding that a prisoner cannot be recommended for
administrative segregation placement. Thus, defendant Torres’ mere request that
the plaintiff be placed on administrative segregation status does not violate any
constitutionally protected rights. All claims against defendant Torres are
dismissed pursuant to 28 U.S.C. § 1915A.
Defendant Arnone is the Commissioner of the Connecticut Department of
Correction. The doctrine of respondeat superior is inapplicable in section 1983
cases. See Hayut v. State University of New York, 352 F.3d 733, 753 (2d Cir.
2003). Supervisors are not automatically liable under section 1983 when their
subordinates commit a constitutional tort. To establish a claim for supervisory
liability, the plaintiff must demonstrate one or more of the following criteria: (1)
the defendant actually and directly participated in the alleged 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 his supervision of the correctional officers who committed
the constitutional violation; or (5) the defendant was deliberately indifferent to the
plaintiff’s rights by failing to act in response to information that unconstitutional
acts were occurring. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).
The plaintiff also 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 found that a supervisor can be held liable only
“through the official’s own individual actions.” 556 U.S. at 676-77. This decision
arguably casts doubt on the continued viability of some of the categories for
supervisory liability. The Second Circuit has not revisited the criteria for
supervisory liability following Iqbal. See Gonzalez v. Sarreck, No. 08 Civ. 3661,
2011 WL 5051341,at *14 n.3 (S.D.N.Y. Oct. 24, 2011).
Here, however, the plaintiff has alleged no facts suggesting that defendant
Arnone would have been involved in or aware of the particular decision to
transfer him to administrative segregation, the delay in the initial hearing or the
denial of periodic reviews. Nor has the plaintiff alleged facts to support a
department-wide policy to ignore the departmental directives regarding
administrative segregation placement. Thus, even under the broad categories for
supervisory liability, the plaintiff had not alleged facts to support a plausible
claim against defendant Arnone. The other supervisory defendants, Quiros,
Powers, Maldonado, Cyr and Milling may have been more directly involved in the
actions in this case. Thus, the case will proceed against them, as well as against
defendants Cahill, Peterson and Marinelli, at this time.
The Court enters the following orders:
All claims against defendants Torres and Arnone are DISMISSED
pursuant to 28 U.S.C. § 1915A for failure to state cognizable claims against these
The Pro Se Prisoner Litigation Office shall verify the current work
addresses for each of the remaining defendants, Lynn Milling, Edward
Maldonado, Don Cyr, Angel Quiros, Jason Cahill, Dennis Marinelli, Scott Peterson
and Lauren Powers, with the Department of Correction Office of Legal Affairs.
The Pro Se Prisoner Litigation Officer shall mail waiver of service of process
request packets to each defendant at the confirmed addresses within fourteen
(14) days of this Order. The Pro Se Prisoner Litigation Office shall report to the
court on the status of those waiver requests on the thirty-fifth (35) day after
mailing. If any defendant fails to return the waiver request, the Pro Se Prisoner
Litigation Office shall make arrangements for in-person service by the U.S.
Marshals Service on the defendant in his individual capacity and the defendant
shall be required to pay the costs of such service in accordance with Federal
Rule of Civil Procedure 4(d).
The Pro Se Prisoner Litigation Office shall prepare a summons form
and send an official capacity service packet to the U.S. Marshal Service. The U.S.
Marshal is directed to effect service of the complaint with all exhibits on
defendants Lynn Milling, Edward Maldonado, Don Cyr, Angel Quiros, Jason
Cahill, Dennis Marinelli, Scott Peterson and Lauren Powers in their official
capacities at the Office of the Attorney General, 55 Elm Street, Hartford, CT
06141, within fourteen (14) days from the date of this order and to file returns of
service within twenty (20) days from the date of this order.
The Pro Se Prisoner Litigation Office shall send a courtesy copy of
the Complaint and this Ruling and Order to the Connecticut Attorney General and
the Department of Correction Office of Legal Affairs.
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.
The 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 they choose to file an answer, they shall admit or deny the allegations and
respond to the cognizable claims recited above. They also may 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 nonmoving 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 absent objection.
So ordered this 30th day of April 2012, at Hartford, Connecticut.
Vanessa L. Bryant
United States District Judge
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