Gipson v. Pizzillo et al

Filing 7

PRISCS-INITIAL REVIEW ORDER DISMISSING 1 Complaint filed by Darrell Gipson The Clerk is directed to enter jugment in favor of the defendants and close this case.. Signed by Judge Janet C. Hall on 11/19/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DARRELL GIPSON,
Plaintiff,
v.
PETER T. PIZZILLO, et. al.,
Defendants.

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PRISONER CASE NO.
3:12-cv-1481 (JCH)
NOVEMBER 19, 2012

INITIAL REVIEW ORDER
The plaintiff, Darrell Gipson, currently incarcerated at the Osborn Correctional
Institution in Somers, Connecticut, has filed a complaint pro se under 42 U.S.C. § 1983
(2000). The plaintiff names as defendants Director Peter T. Pizzillo and Counselor Tim
Doe of the Midwestern Connecticut Council on Alcoholism, Inc. (“MCCA”).
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. In reviewing a pro se complaint, 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 July 24, 2012, the plaintiff began treatment in the
MCCA Detox unit. On July 29, 2012, he was successfully discharged and transferred to
the MCCA Sobering Center. On August 7, 2012, defendant Pizzillo asked him to leave
the program and defendant Doe refused to make him a copy of a grievance form.
To state a section 1983 claim, the plaintiff must allege that a person acting under
color of state law violated his constitutionally or federally protected rights. Defendants
Pizzillo and Doe work at MCCA. The Supreme Court has established a two-part test to
determine when the actions of a private party may be attributed to the state so as to
make the private party subject to liability under section 1983. First, “the deprivation
must be caused by the exercise of some right or privilege created by the State or by a
rule of conduct imposed by the State or by a person for whom the State is responsible.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). “Second, the party charged
with the deprivation must be a person who may fairly be said to be a state actor. This
may be because he is a state official, because he has acted together with or obtained
significant aid from state officials, or because his conduct is otherwise chargeable to the
State.” Id.
The MCCA website indicates that it is supported by the Connecticut Department
of Mental Health and Addiction Services and the Connecticut Court Support Services
Division. See www.mccaonline.com/about-us/ (last visited Nov. 8, 2012). Thus,
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although the defendants do not appear to be state employees, they do receive
significant aid from the state. In addition, in making complaints about his treatment, the
plaintiff contacted the Department of Mental Health and Addiction Services. These
facts are sufficient to allege that the defendants are persons for whom the State may be
responsible and that they have obtained significant aid from the state. Thus, for
purposes of this Ruling, the court considers the defendants to be state actors. Even so,
however, the plaintiff fails to state cognizable claims against the defendants.
The only allegation against defendant Doe is that he refused to copy a grievance
form for the plaintiff when he requested one. Refusal to provide a grievance form does
not constitute a violation of the plaintiff’s constitutional rights because there is no
constitutional right to a grievance procedure. See Savage v. Perez, No. 09 Civ.
5208(PKC)(HBP), 2010 WL 4739811, at *4 (S.D.N.Y. Nov. 17, 2010) (citing cases).
“The grievance procedure or lack thereof cannot itself form the basis of a section 1983
claim,” Id. (internal citations omitted), as the grievance procedures are undertaken
voluntarily by the State. See Chadwick v. Mondoux, 2007 WL 2891655 at 6 (NDNY
Sept. 28, 2007). In addition, the plaintiff was able to obtain and timely complete a
grievance form; a copy of the grievance form is attached to the Complaint. The claim
against defendant Doe is dismissed pursuant to 28 U.S.C. § 1915A.
Defendant Pizzillo asked the plaintiff to leave the program. The court assumes
that the plaintiff is asserting a claim that he was deprived of due process in connection
with his rejection from the program. To prevail on a due process claim, the plaintiff
must show that he had a protected liberty interest and that he was not afforded the
requisite process before he was deprived of that interest. See Cruz v. Gomez, 202
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F.3d 593, 597 (2d Cir. 2000). A protected liberty interest may be found in the
protections afforded by the Constitution or under state law. Research has revealed no
protected liberty interest in participation in an alcohol treatment program. Accordingly,
there is no basis for a section 1983 claim against defendant Pizzillo.
ORDERS
In accordance with the foregoing analysis, the court enters the following orders:
(1)

The complaint is DISMISSED pursuant to 28 U.S.C. § 1915A.

(2)

The Clerk is directed to enter judgment in favor of the defendants and

close this case.
SO ORDERED.
Dated this 19th day of November 2012, at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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