Harnage v. Brighthaupt et al

Filing 5

PRISCS-INITIAL REVIEW ORDER, Answer deadline updated for Danya Baker to 2/4/2013; John J. Bernard to 2/4/2013; Boufard to 2/4/2013; Brighthaupt to 2/4/2013; Christiaello to 2/4/2013; Davis to 2/4/2013; Robert Dicosmo to 2/4/2013; Faraci to 2/4/2013; Goncalvez to 2/4/2013; Hogan to 2/4/2013; Johnson(Captain, sued in their individual and official capacities) to 2/4/2013; Johnson(Disciplinary Coordinator, sued in their individual and official capacities) to 2/4/2013; Mollin to 2/4/2013; Mulligan to 2/4/2013; Powers to 2/4/2013; Santoprietro to 2/4/2013; St. Pierre to 2/4/2013; Tardiff to 2/4/2013; Bryan Vigars to 2/4/2013; Watson to 2/4/2013; Wright to 2/4/2013., ( Discovery due by 7/22/2013, Dispositive Motions due by 8/20/2013). Signed by Judge Alvin W. Thompson on 12/20/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMES A. HARNAGE,
Plaintiff,

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v.
BRIGHTHAUPT, et al.,
Defendants.

PRISONER
Case No. 3:12-cv-1521(AWT)

INITIAL REVIEW ORDER
The plaintiff, who is currently incarcerated at the
MacDougall-Walker Correctional Center in Suffield, Connecticut,
has filed a complaint pro se pursuant to 42 U.S.C. § 1983.

He

names as defendants Warden Brighthaupt, Deputy Warden Powers,
Deputy Warden Davis, Lieutenant Mollin, Captain Johnson, Captain
Watson, Captain Danya Baker, Captain Bryan Vigars, Lieutenant
John J. Bernard, Counselor Supervisor Boufard, Disciplinary
Coordinator Johnson, Correctional Officer Santopietro,
Correctional Officer Hogan, Correctional Officer Faraci,
Correctional Officer Christiaello, Correctional Officer Robert
Dicosmo, Lieutenant Wright, Correctional Officer Goncalvez,
Correctional Officer Tardiff, Correctional Officer St. Pierre and
Correctional Officer Mulligan.

All defendants are named in their

individual and official capacities.
Under 28 U.S.C. § 1915A, 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[].”
F.3d 636, 639 (2d Cir. 2007).

Abbas v. Dixon, 480

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, 129 S. Ct. 1937, 1949 (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)).
I.

Factual Allegations
The plaintiff includes sixteen counts in his complaint.

All

of his claims arise out of acts he alleges occurred while he was

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confined at the Cheshire Correctional Institution.
Count One:
The plaintiff states that he is well known among
correctional staff at Cheshire Correctional Institution as being
actively outspoken regarding conditions of confinement.

He has

filed numerous grievances regarding conditions and the actions of
various staff members.
On September 10, 2011, the plaintiff filed grievances
against defendants Mollin and Santopietro because they would not
let him exchange an allegedly uncooked burger he received at
lunch.

Defendants Mollin and Santopietro verbally harassed him

about the incident and about filing grievances against them.
On September 20, 2011, defendant Hogan issued the plaintiff
a disciplinary report for mailing letters to three different
people in one envelope.

This particular infraction is not

mentioned in the Administrative Directives.

Defendant Mollin was

present when the plaintiff was escorted to restrictive housing
and was present at the disciplinary hearing.

The plaintiff

believes that defendant Hogan issued the disciplinary report in
conspiracy with defendants Mollin and Santopietro in retaliation
for his exercise of his rights to freedom of speech, access to
the courts and redress of grievances.
The plaintiff contends that the issuance of a disciplinary
report for conduct not specifically set forth in the Inmate

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Handbook or Administrative Directives violated his right to due
process.

He states that defendants Brighthaupt, Davis and Powers

had a duty to adequately write the directives and handbook to
provide notice that this conduct would result in issuance of a
disciplinary report.
Count Two:
In Count Two, the plaintiff states that defendant
Disciplinary Coordinator Johnson failed to consider all of the
relevant evidence regarding the disciplinary charge and failed to
timely schedule the hearing.

The hearing was conducted by an

unidentified hearing officer who found the plaintiff guilty
despite the fact that none of the letters or the envelope were in
the plaintiff’s handwriting and the plaintiff did not know any of
the addressees.

The plaintiff characterizes this claim as a

denial of due process.
Count Three:
In Count Three, the plaintiff alleges that two weeks after
he was sent to restrictive housing, the property officer,
defendant Faraci, found a sewing needle in the plaintiff’s
property.
Mollin.

The search was initiated and supervised by defendant

The plaintiff received a disciplinary report for

possession of contraband.

The plaintiff contends that defendant

Mollin planted the sewing needle in his property.
The plaintiff received a second disciplinary report for

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possession of contraband.

The second report covered some items

that the plaintiff admits were contraband and included in his
property, along with several items that were not contraband.
Disciplinary Coordinator Johnson told the plaintiff that if he
did not plead guilty to possession of all of the listed items as
contraband, an individual disciplinary report would be issued for
each item.

The hearing on the disciplinary reports was untimely.

The plaintiff contends that the disciplinary reports were issued
in retaliation and the hearing violated his right to due process.
Count Four:
In Count Four, the plaintiff challenges the conditions in
what he calls "Ticket Blocks."

Although the units are classified

as general population housing units, the conditions in these
units are more restrictive than the conditions in other housing
units.

When the plaintiff complained to defendants Brighthaupt

and Watson, he was informed that the units are considered general
population housing units and are not punitive.
In the units, the plaintiff was denied a communal meal
period and had to eat in his cell.

He was required to shower in

the evening and did not have the choice of showering in the
morning or evening.
Center.

He had limited access to the Inmate Resource

There was no television in the day room and no

typewriter in the unit.

Finally, there was no access to the

outdoor recreation yard or the gymnasium.

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The plaintiff

characterizes this claim as a denial of due process and equal
protection, as well as being subjected to unconstitutional
conditions of confinement.
Count Five:
In Count Five, the plaintiff alleges that defendants Powers,
Brighthaupt, Davis and Christiaello interfered with his right of
access to the prison grievance procedure.

He states that

defendant Brighthaupt issued a memo requiring inmates to seek
informal resolution with every staff member in the chain of
command before filing a grievance.

Defendant Brighthaupt also

placed the plaintiff on grievance restriction.

The plaintiff

characterizes the actions of defendant Brighthaupt as
retaliatory.
Count Six:
On March 21, 2012, the plaintiff was attempting to obtain
affidavits from other inmates regarding strip searches.

The

plaintiff intended to use the affidavits in an action before the
Connecticut Claims Commissioner.

Defendant Bernard, the notary,

notarized the affidavit presented by the first inmate in line,
but then, after reading the second affidavit, refused to notarize
the affidavits presented by any other inmate.

Defendant Bernard

also refused to notarize an affidavit and fee waiver for the
plaintiff.

The plaintiff contends that these actions interfered

with his right of access to the courts and were retaliatory in

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nature.
Count Seven:
In Count Seven, the plaintiff alleges that, within an hour
of refusing to notarize the affidavits, defendant Bernard ordered
defendant Dicosmo to conduct a routine search of the plaintiff’s
cell.

Defendant Dicosmo only searched the plaintiff’s legal

materials.

The plaintiff believes that defendant Dicosmo was

told to retrieve any affidavits.

The plaintiff alleges that this

search was made as part of a conspiracy with defendants Baker and
Vigars and under the authority of defendants Brighthaupt, Powers
and Davis.
Count Eight:
In Count Eight, the plaintiff alleges that, although
defendant Dicosmo was unable to locate any affidavits during his
search, he did confiscate a habeas petition the plaintiff was
preparing for another inmate.

Defendant Discosmo issued the

plaintiff a disciplinary report for possession of contraband
because the habeas petition was for another inmate.

The

plaintiff contends that he was singled out for punishment; many
inmates provide legal assistance to others and are not punished.
The plaintiff characterizes this claim as a violation of his
right to freedom of speech, access to the courts and equal
protection.

He also argues that his due process rights were

violated because the defendants failed to indicate in the

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Administrative Directives or Inmate Handbook that such conduct
was forbidden.
Count Nine:
The plaintiff alleges that his disciplinary hearing was
untimely and that the hearing officer refused to consider his
evidence or call the inmate whose name appeared on the habeas
petition to testify that the plaintiff had the petition with the
inmate’s permission and was not charging for assistance.
Count Ten:
Following the guilty finding, the plaintiff was transferred
to a Ticket Block where he was subjected to the conditions
described above.
Count Eleven:
The plaintiff was assigned a violent, unstable inmate, Alex
Cruz, as a cellmate.

In June 2012, the plaintiff informed

defendant Captain Johnson that he felt threatened by Cruz.

In

July 2012, a friend of Cruz was moved to the housing unit.

Cruz

wanted to share a cell with his friend and began threatening the
plaintiff that if Cruz were not moved, he would assault the
plaintiff.

On July 9, 2012, both the plaintiff and Cruz informed

defendants Goncalvez and Tardiff that they could not remain as
cellmates.

The plaintiff emphasized that he feared for his

safety and Cruz repeated his threats.
Tardiff did not move either inmate.

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Defendants Goncalvez and

Several hours later defendant Wright spoke with Cruz and
threatened to send him to segregation if he continued to threaten
the plaintiff.

He did not, however, send Cruz to segregation.

The following day, the plaintiff and Cruz approached defendants
Tardiff and St. Pierre and asked to speak with defendant Captain
Johnson.

A few hours later, defendant Johnson spoke with Cruz.

Later in the day, Cruz was informed that he would be transferred
to another cell, but not to the cell with his friend.

Cruz

objected to the inmate in the new cell and argued with defendant
Tardiff.

After defendant Tardiff refused to call defendant

Johnson back to the unit, Cruz began to assault the plaintiff.
The plaintiff contends that the defendants failed to protect him
from harm and retaliated against him by failing to follow
standard prison protocol to protect the plaintiff from harm.
Count Twelve:
Although Cruz was the aggressor in the assault, the
plaintiff was taken to the restrictive housing unit and subjected
to a strip search by defendant Mulligan in the presence of
defendants Dicosmo, Watson, Captain Johnson and Wright.
Count Thirteen:
Initially, only Cruz was charged for the assault.

The

plaintiff was released from restrictive housing after three days.
He immediately filed a grievance.

On July 16, 2012, the

plaintiff was returned to restrictive housing because defendants

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Captain Johnson, Disciplinary Coordinator Johnson, Brighthaupt,
Watson, Powers and Davis characterized the incident as a fight.
Cruz pled guilty to his disciplinary charge and served less time
in restrictive housing than the plaintiff.

The plaintiff

considers this charge retaliation for his filing the grievance.
He also asserts an equal protection claim.
Count Fourteen:
Defendant Mulligan subjected the plaintiff to another strip
search upon his readmission to restrictive housing.

Defendants

Dicosmo, Wright, Captain Johnson and Watson witnessed the search.
Count Fifteen:
The plaintiff alleges in Count Fifteen that the disciplinary
hearing was untimely, and the hearing officer failed to consider
all evidence and did not allow the plaintiff to call defendant
Tardiff as a witness.
Count Sixteen:
The plaintiff alleges in Count Sixteen that he was again
assigned to a Ticket Block and subjected to the same conditions
that are described above.

Cruz was in the same housing unit.

Other inmates in the unit called the plaintiff a snitch because
he had pressed charges against Cruz.

The plaintiff believes that

his placement in the same housing unit as Cruz was retaliatory.
When he complained, he was transferred to another facility.

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II.

Analysis
A.

Strip Searches

In Counts Twelve and Fourteen, the plaintiff alleges that he
was subjected to strip searches in the presence of several
correctional officers.

He characterizes these claims as ones for

violation of his Fourth Amendment right to be free from
unreasonable searches and his Eighth Amendment right to be free
from cruel and unusual punishment.
In Bell v. Wolfish, the Supreme Court specifically held that
the Fourth Amendment does not prohibit routine strip searches of
inmates, provided such searches are conducted in a reasonable
manner. See 441 U.S. 520, 558 (1979).

The plaintiff was strip

searched as a routine matter in connection with being escorted to
restrictive housing.

He alleges no facts suggesting that the

search was unreasonable such as to support a Fourth Amendment
claim.
Inmates have a limited right to bodily privacy.

Cases

finding a violation of this right in the context of a strip
search do so where the search was conducted by correctional staff
of the opposite sex.
Cir. 1992).

See Covino v. Patrissi, 967 F.2d 73 (2d

The plaintiff does not allege such facts.

Accordingly, the claims in Counts Twelve and Fourteen are
dismissed pursuant to 28 U.S.C. § 1915A.
B.

Due Process

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In Counts Two, Nine and Fifteen, the plaintiff argues that
irregularities at disciplinary hearings, such as an untimely
hearing, inability to call witnesses and consider all available
evidence, violated his right to due process.
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 F.3d 593, 597 (2d Cir. 2000).

To determine whether a prisoner had a protected liberty interest
in a disciplinary hearing, the court must look to Sandin v.
Conner, 515 U.S. 472 (1995), where the Supreme Court held that
state-created liberty interests of prisoners were limited to
freedom from restraint that “imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.”

Id. at 483-84.

The rule in this Circuit, since

Sandin, is that a prisoner has a protected liberty interest
“‘only if the deprivation ... is atypical and significant and the
state has created the liberty interest by statute or
regulation.’”

Tellier v. Fields, 280 F.3d 69, 80 (2d Cir. 2000)

(quoting Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997))
(omission in original).
As a result of the disciplinary charges, the plaintiff was
confined in restrictive housing.

The Second Circuit has held,

however, that confinement in restrictive housing for periods much

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longer that those suggested by the plaintiff’s allegations do not
constitute an atypical and significant hardship sufficient so as
to state a claim under Sandin.

See, e.g., Frazier v. Coughlin,

81 F.3d 313, 317-18 (2d Cir. 1996) (holding that 120 days
confinement in segregation followed by 30 days loss of
recreation, commissary privileges, packages and telephone use did
not state a cognizable claim for denial of due process).
Accordingly, these due process claims are dismissed pursuant to
28 U.S.C. § 1915A.
ORDERS
In accordance with the foregoing, the court enters the
following orders:
(1)

All claims challenging strip searches and for violation

of due process in connection with disciplinary hearings are
hereby DISMISSED pursuant to 28 U.S.C. § 1915A.

The case will

proceed as to all remaining claims.
(2)

The Pro Se Prisoner Litigation Office shall verify the

current work addresses for all defendants with the Department of
Correction Office of Legal Affairs and mail waiver of service of
process request packets to each defendant in his or her
individual capacity within fourteen (14) days of this order, and
report to the court on the status of those waiver requests on the
thirty-fifth (35) day after mailing.
If any individual defendant fails to return the waiver
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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 or her 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).
(3)

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 on all defendants in their official
capacities at the Office of the Attorney General, 55 Elm Street,
Hartford, Connecticut 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.
(4)

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.
(5)

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 chooses 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.
(6)

Discovery, pursuant to Federal Rules of Civil Procedure

26 through 37, shall be completed within seven months (210 days)
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from the date of this order.

Discovery requests need not be

filed with the court.
(7)

All motions for summary judgment shall be filed within

eight months (240 days) from the date of this order.
(8)

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.
Entered this 20th day of December 2012, at Hartford,
Connecticut.
/s/AWT
Alvin W. Thompson
United States District Judge

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