Wilson v. McKenna et al

Filing 23

ORDER granting in part and denying in part defendants' 18 Motion to Dismiss plaintiff's 15 Amended Complaint; denying plaintiff's 21 Motion to Amend/Correct; and Initial Review Order as to certain claims in plaintiff's 15 Amended Complaint. Signed by Judge Vanessa L. Bryant on 03/31/15. (Rock, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ALVIN WILSON,
Plaintiff,
v.
BROOKE McKENNA, et al.,
Defendants.

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Case No. 3:12-cv-1581 (VLB)

MARCH 31, 2015

RULING ON DEFENDANTS’ MOTION TO DISMISS [Doc. #18]
AND PLAINTIFF’S MOTION TO AMEND AMENDED COMPLAINT [Doc. #21] AND
INITIAL REVIEW ORDER AS TO CERTAIN CLAIMS
The plaintiff, incarcerated and pro se, commenced this case with a complaint
filed November 8, 2012, in which plaintiff asserted three unrelated claims under 42
U.S.C. § 1983. The only defendant identified by name in plaintiff’s initial complaint
was Brooke McKenna,1 who was named in the first count. All of the other
defendants named in plaintiff’s initial complaint were identified as John Doe or Jane
Doe. On August 30, 2013, the court entered an Initial Review Order (the “IRO”) in
which the court allowed plaintiff to proceed on the first count in the initial complaint
and ordered the complaint served on defendant McKenna, while declining to rule on
the second and third counts until plaintiff identified by name the defendants named
in those counts. The court stated that it would review the viability of the second and
third claims once the plaintiff had identified persons associated with those claims.

1

Although plaintiff named defendant as “Jane McKenna,” defendant
represents that her name is actually “Brooke McKenna,” a claim that plaintiff does
not rebut. The court will thus refer to her as Brooke McKenna.
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The plaintiff filed his amended complaint on February 27, 2014. In his
amended complaint plaintiff reasserts the three claims raised in his initial complaint
and for which he named John Doe defendants in the initial complaint, and also adds
additional claims, which will be discussed in greater detail below. In response,
defendant Brooke McKenna has filed a motion to dismiss. The plaintiff opposes the
motion to dismiss and has filed a motion for leave to further amend the complaint.
The court will conduct below an initial review of claims two and three of the initial
complaint as renewed in the amended complaint, as well as the claims newly
asserted in the amended complaint. For the reasons that follow, the motion to
dismiss is granted in part and denied in part, and the motion to amend is denied.
Further, several of plaintiff’s claims are dismissed pursuant to 28 U.S.C. §
1915A(b)(1).
I. FACTS
Plaintiff’s amended complaint is handwritten, discursive, and very difficult to
decipher.2 Although plaintiff appears to divide his amended complaint into four
counts, certain of the counts describe seemingly unrelated incidents, and there is
overlap between the factual allegations in certain of the counts. In the interest of
clarity, the court will organize this opinion around the various incidents described,
rather than the “counts” as laid out by plaintiff. As best as the court can determine,
the plaintiff alleges the following facts.
A. July 18, 2011 Hand Injury at Hartford Superior Court
On July 18, 2011, the plaintiff was a pretrial detainee in the care of the

2

This observation also applies to plaintiff’s initial complaint.
2

Connecticut Judicial Marshals at the Hartford Superior Court. When he approached
the cell door, while walking in leg restraints, he slipped on something wet on the
floor. At the same time, a state judicial marshal opened the cell door and closed it
on his hand. It is unclear from the amended complaint whether plaintiff suffered any
injuries from the fall. Plaintiff alleges the closing of the door on his hand was a
deliberate act, done because the state judicial marshals “do not like [him].” Am.
Compl. at 11.3 The plaintiff was taken to Hartford Hospital by ambulance, and
alleges that the doctor failed to provide proper treatment to his hand. Plaintiff does
not state what type of claim he alleges in regard to this incident. The only defendant
named in this count is the State of Connecticut.
B. June 2012 Failure to Renew Prescriptions
On June 22, 2012, the plaintiff was a pretrial detainee at Hartford Correctional
Center. Plaintiff was apparently prescribed pain medication for injuries to his head,
face, mouth, teeth, neck, shoulders, back, leg, hand, knees, and feet, allegedly
caused by Hartford police officers during an arrest on June 21, 2012. After six days,
Drs. Laplante and Pillai refused to renew the prescriptions or provide any other
medical treatment, allegedly because they “do not like [him].” Am. Compl. at 10.
Plaintiff alleges that he was “dieing suffering from all the pain from the untreated
injuries I receive on 6-21-2012.” Am. Compl. at 10. Plaintiff claims that Drs. Laplante
and Pillai violated his Eighth Amendment rights, as well as rights under other
unspecified amendments.
C. June/July 2012 Confinement in Windowless Cell

3

Because plaintiff’s pagination is inconsistent, the court refers to the page
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From on or around June 22, 2012, until July 25, 2012, plaintiff alleges he was
housed alone in a windowless cell and could not tell whether it was day or night at
any time. Plaintiff asserts that he was suffering greatly from the pain caused by his
untreated injuries at this time. The plaintiff attributes this confinement to defendant
Warden Ford. Plaintiff claims that Warden Ford violated his Eighth Amendment
rights, as well as rights under other unspecified amendments.
D. September 17, 2012 Finger Injuries
This is the claim the court allowed to go forward against defendant McKenna
in the IRO. As realleged in the amended complaint, the following defendants are
named in this claim: McKenna, Warden Erfe, Dr. Farinella, and Dr. Gillig. On
September 17, 2012, while the plaintiff was confined at Corrigan-Radgowski
Correctional Center (“Corrigan”), defendant McKenna closed the cell door on his
fingers, cutting them to the bone. She refused to give plaintiff any medical
assistance, and also refused to call for emergency medical assistance, telling
plaintiff to sign up for sick call. The plaintiff alleges that defendant McKenna then
contacted the defendant doctors, Dr. Farinella and Dr. Gillig, and told them not to
call the plaintiff for sick call. The doctors did not treat plaintiff’s injury or summon
him for sick call. Plaintiff further alleges that as a result of the lack of treatment, his
fingers are now deformed and he is handicapped. Plaintiff also alleges that Warden
Erfe worked with McKenna to prevent the doctors from treating plaintiff’s injuries,
and to cover up the incident. On September 20, 2012 plaintiff filed a grievance
regarding this incident, in which plaintiff complained about not being seen for sick

numbering provided in the document’s ECF header.
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call for treatment for the injuries to his fingers.
E. March 28, 2013 Assault
The following allegations were not included in plaintiff’s initial complaint, and
were first asserted in the amended complaint now before the court. Plaintiff alleges
that he was assaulted at Corrigan on March 28, 2013 in retaliation for filing a
grievance against defendant McKenna. Plaintiff alleges that Lieutenant Aver and
Correctional Officer Wayen gave plaintiff false disciplinary reports, and encouraged
other correctional officers to do the same, so that they could put plaintiff in
segregation and assault him. Plaintiff alleges that on March 28, 2013, while in
segregation, defendants Lieutenant Aver, Lieutenant William, Correctional Officer
Wayen, Correctional Officer McKenna, and Warden Erfe conspired to have
Correctional Officer Hanney, and a John Doe Lieutenant assault plaintiff. Plaintiff
alleges that Hanney and John Doe came to plaintiff’s cell, handcuffed him, and took
him to segregation. Once in segregation, they assaulted plaintiff, pushing his face
into the cell door and window head-first. Plaintiff also alleges that Correctional
Officer Hanney sexually assaulted plaintiff while plaintiff was being held in
handcuffs by the John Doe defendant. Plaintiff writes “review tap, on 03-28-2013 at
C.R.C.C. in segregation, I think about 6:30 PM 118-cell,” which the court interprets
as a claim that there exists surveillance tape of the incident. Plaintiff asserts that
defendants violated plaintiff’s civil rights although the specific statute under which
plaintiff appears to be bringing a claim is not visible in the document.
It is not clear from plaintiff’s complaint, but he may also be alleging that
defendants Aver and Wayen were retaliating against plaintiff for grievances he had
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earlier lodged against them, although this portion of the complaint is particularly
unclear. If plaintiff is in fact making such an allegation, plaintiff has not provided
the date he made a grievance against Aver and/or Wayen.
F. April 2013 Transfer to MacDougall-Walker Correctional Institution
Plaintiff also alleges for the first time in his amended complaint that he was in
segregation at Corrigan from the date of the alleged assault, March 28, 2013, until
April 21, 2013, when he was transferred to the MacDougall-Walker Correctional
Institution (“MacDougall-Walker”). Plaintiff alleges that he was transferred in order
to prevent plaintiff from getting the names of the staff members involved in the
incident on March 28, 2013. Plaintiff alleges that the staff members at Corrigan sent
a copy of the grievance in his file to the staff members at MacDougall-Walker, and
as a result the staff members at MacDougall-Walker began abusing him. Plaintiff
argues that he was held in segregation for ten days longer than he should have
been, without reason, before being released to general population. Plaintiff asserts
that the staff at MacDougall-Walker continue to harass him, including by issuing him
false disciplinary reports, in retaliation for his having filed legal actions against
Department of Corrections staff members, and because they “do not like [him].” Am.
Compl. at 12. Plaintiff does not state what type of claim he alleges in regard to
these facts. Plaintiff names the following individuals as defendants in the text of this
claim: Warden Peter Murphy, Captain Van Ouden, District Administrator Angel
Quiros, Investigator Demarch, Counselor Arace, Correctional Officer Joyal,
Correctional Officer Reyes, Correctional Officer Barens, and Lieutenant Mahony.
II. STANDARDS OF REVIEW
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The only claim in the amended complaint that has been the subject of an initial
review order is plaintiff’s claim against defendant McKenna arising from the
September 17, 2012 hand injuries. The court will thus conduct an initial review of
the other claims in the amended complaint. The court will also conduct an initial
review of the claim arising form the September 17, 2012 hand injuries as to
defendants Dr. Farinella, Dr. Gillig, and Warden Erfe, as those defendants were
added in the amended complaint. Finally, the court will also consider defendants’
pending motion to dismiss.
A. Initial Review Standard
Pursuant to 28 U.S.C. § 1915A(b), 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. 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

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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.
B. Motion to Dismiss Standard
The pleading standard in federal court is well settled law. “‘To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.’” Sarmiento v. United
States, 678 F.3d 147, 152 (2d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). In the
interest of brevity, the court will refer to the plausibility standard described above
in the section above, Part II.A.
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
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entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotations and citation omitted).
III. DISCUSSION
The defendants move to dismiss on several grounds, including: improper
joinder, insufficient service of process, failure to state a cognizable claim, and
qualified immunity. Although he has filed an objection to the motion to dismiss
and a supporting memorandum, the plaintiff’s objection is inscrutable and fails to
address any of the defendants’ grounds for relief. Although only defendant
McKenna has been served, as she was the only defendant identified by name in
the initial complaint, the motion to dismiss is apparently filed on behalf of all
defendants named in plaintiff’s amended complaint.
The court will first address issues that affect multiple claims in the
amended complaint, and then consider the individual claims.
A. Exhaustion
The court notes that it is not clear from the face of plaintiff’s amended
complaint whether he has exhausted his claims as required by the Prison
Litigation Reform Act (the “PLRA”). In regards to his claim arising from the
September 17, 2012 hand injury, plaintiff states that “plaintiff, A.W. filed
grievance, on 9-20-2012 because he was not seen for sick call for his serious cuts
to his figers, . . .” Am. Compl. at 9. The court cannot discern any allegations with
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regard to exhaustion in any of plaintiff’s other claims. The PLRA contains a strict
administrative exhaustion requirement for conditions of confinement litigation:
“No action shall be brought with respect to prison conditions . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “There is no
question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007)
(citation omitted). The Second Circuit has established a three-part inquiry to
determine whether an inmate has satisfied the exhaustion requirement of §
1997e(a). The exhaustion inquiry involves the following questions:
[1] a determination that administrative remedies were in fact available to
the prisoner[;] . . . [2] whether defendants forfeited the affirmative defense
of non-exhaustion by failing to raise or preserve it, or whether defendants'
own actions inhibiting the inmate's exhaustion of remedies estops one or
more of the defendants from raising the exhaustion defense[;] . . . [3]
whether, if the requirements of step two were not met, special
circumstances excuse the plaintiff's failure to pursue or exhaust
administrative remedies.
Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011).
The Connecticut Department of Corrections affords inmates a three level
grievance process. See Conn. Dep’t of Corr. Admin. Dir. 9.6(6), available at
http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0906.pdf (last visited Mar. 24, 2015).
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Although it is not clear from plaintiff’s amended complaint whether he has
satisfied the exhaustion requirement, the Supreme Court has held that “failure to
exhaust is an affirmative defense under the PLRA,” and “inmates are not required
to specially plead or demonstrate exhaustion in their complaints.” Jones, 549
U.S. at 216. Defendants bear the burden of proving that plaintiff failed to exhaust
his claims. See, e.g., Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009)
(citations omitted). Defendants have raised exhaustion as an affirmative defense
in their answer, but have not raised it in their motion to dismiss, nor borne their
burden of proof to demonstrate a failure to exhaust, and thus the court will not
consider exhaustion at this time.
B. No Claims Against State of Connecticut or Official Capacity Defendants
Defendants correctly argue that any claims for damages against them in
their official capacities or against the State of Connecticut are barred. The
Eleventh Amendment protects the states from suit and protects state actors from
an award of damages against the individual in his official capacity. See Kentucky
v. Graham, 473 U.S. 159, 169 (1985) (holding that, absent waiver by the state or
valid congressional override, the Eleventh Amendment bars a damages action in
federal court against a state or state official in his official capacity). Section 1983
does not abrogate states' sovereign immunity. See Quern v. Jordan, 440 U.S.
332, 342-43 (1979). Thus, the plaintiff cannot recover damages from the State of
Connecticut or the defendants in their official capacities. The defendants’ motion
to dismiss is granted as to all claims for damages against the State of
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Connecticut and the defendants in their official capacities.
C. Improper Joinder
Defendants argue plaintiff has improperly joined parties in violation of Rule
20 of the Federal Rules of Civil Procedure. Defendants argue that there is “no
nexus” between the various defendants and the different claims advanced by the
plaintiff. Def. Mem. at 5-7.
Federal Rule of Civil Procedure 20(a)(2)(A) provides that persons may be
joined in one action as defendants if “(A) any right to relief is asserted against
them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences; and (B)
any question of law or fact common to all defendants will arise in the action.”
The plaintiff has improperly joined unrelated defendants in this case. “In
the absence of a connection between Defendants' alleged misconduct, the mere
allegation that Plaintiff was injured by all Defendants is not sufficient [by itself] to
join unrelated parties as defendants in the same lawsuit pursuant to Rule 20(a)."
Peterson v. Regina, 935 F. Supp. 2d 628, 638 (S.D.N.Y. 2013) (quoting Deskovic v.
City of Peekskill, 673 F. Supp. 2d 154, 167 (S.D.N.Y. 2009)). When evaluating
whether the claims or parties are properly joined under Rule 20(a), the court must
accept as true all factual allegations in the plaintiff’s complaint. Deskovic, 673 F.
Supp. 2d at 159-60 (citing Viada v. Osaka Health Spa, 235 F.R.D. 55, 61 (S.D.N.Y.
2006)). Plaintiff bears the burden of proving that joinder is proper. Id. at 159
(citing Kehr v. Yamaha Motor Corp., 596 F. Supp. 2d 821, 827 (S.D.N.Y. 2008)).
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Once the court has determined that the parties are improperly joined, it has broad
discretion to sever parties or claims from the action. See, e.g., New York v.
Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir. 1988); Bank of N.Y. Mellon v.
Bell, No. 3:11-cv-1255, 2015 U.S. Dist. LEXIS 22063, at *5 (D. Conn. Feb. 24, 2015)
(citation omitted); Deskovic, 673 F. Supp. 2d at 159-60 (citing Fed. R. Civ. P. 21).
Although plaintiff brings several factually unrelated claims, naming
different defendants in each claim, the court need not order severance here, as
plaintiff has failed to adequately allege all but one of his claims. However, to the
extent that plaintiff may replead any of the dismissed claims, any claim that is refiled must be the subject of its own separate lawsuit, unless plaintiff can show
why the claims and/or defendants should be joined. See Fed. R. Civ. P. 21.
D. Insufficient Service of Process
The defendants contend that service has not been properly effected on
John Doe Corrigan-R-CC, John Doe Warden HCC, John Doe Corrigan –R-CC,
Jane Doe HCC, Jane Does Doe Corrigan R-CC, John Aver, John Wayen and John
Williams. The defendants argue that the claims must be dismissed because
service was not effected within 120 days as required under Rule 4(m) of the
Federal Rules of Civil Procedure. Defendants’ argument is unpersuasive because
the court has not yet ordered service on those defendants. Federal statutes
require that the court effect service of a complaint where the plaintiff has been
granted leave to proceed in forma pauperis, 28 U.S.C. § 1915(d), and that the
court review a prisoner complaint and dismiss any frivolous or noncognizable
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claims, 28 U.S.C. § 1915A(a)-(b). The U.S. Marshal will not attempt to serve the
complaint on any defendant until the court reviews the merits of the allegations
against that defendant and determines that the case should proceed against him
or her.
As the court stated in its August 30, 2013 IRO, the court cannot effect
service on any of the John or Jane Doe defendants without their full names and
current work addresses. IRO at 5. The court gave plaintiff twenty (20) days from
the date of the IRO to file an amended complaint containing the full names and
current work addresses of the John and Jane Doe defendants, and notified
plaintiff that failure to comply with the order could result in the dismissal of all
claims against the John and Jane Doe defendants without further notice from the
court. IRO at 5. After receiving a lengthy extension of time, the plaintiff filed the
amended complaint at issue here. The amended complaint names several specific
individual defendants, and does not name any John or Jane Does in the case
caption or description of the parties. Rule 10 of the Federal Rules of Civil
Procedure requires that a plaintiff name all parties in the caption. Fed. R. Civ. P.
10(a) (“Every pleading must have a caption with the court's name, a title, a file
number, and a Rule 7(a) designation. The title of the complaint must name all the
parties; the title of other pleadings, after naming the first party on each side, may
refer generally to other parties.”). Because the John and Jane Doe defendants are
not named in the caption, they are not considered defendants in this action. See,
e.g., Damato v. Johnson, No. 3:14-cv-1953, 2015 U.S. Dist. LEXIS 22418, at *1 n.1
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(D. Conn. Feb. 25, 2015) (“persons . . . who are listed in the body of the complaint
but not in the caption are not considered defendants in this case.”). The court
concludes that the John and Jane Doe defendants named in plaintiff’s initial
complaint are either the defendants identified in the amended complaint, or
plaintiff has abandoned his claims against the John and Jane Doe defendants he
cannot identify. The clerk is directed to terminate the John and Jane Doe
defendants from the docket.
As no order for service has yet issued as to defendants Aver, Wayen, or
Williams, the defendants’ motion to dismiss for lack of proper service is denied
as premature. Further, this motion is moot, as the court is dismissing the claims
against defendants Aver, Wayen, and Williams for failure to state a claim, see
infra Part III.I.
E. Claims Arising From July 18, 2011 Hand Injury at Hartford Superior Court
Plaintiff names only the State of Connecticut as a defendant in this claim.
As noted above, supra Part III.B, the Eleventh Amendment gives the State of
Connecticut immunity from suit in this action. This claim is thus dismissed
without prejudice to the plaintiff re-filing the claim with specific individual
defendants named. However, plaintiff may not re-allege this claim in this lawsuit;
if plaintiff wishes to re-file this claim, it must be filed as a separate lawsuit, as
there is no factual nexus between this claim and the other claims in this action.
See supra Part III.C. The Clerk is directed to terminate the State of Connecticut as
a defendant in this action.
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F. Claims Arising From June 2012 Failure to Renew Prescriptions
Although plaintiff does not specify what type of claim he is bringing, the
court assumes that plaintiff’s claim is one for deliberate indifference to a serious
medical need, as plaintiff alleges defendants Drs. Laplante and Pillai failed to
renew his prescriptions for injuries he received when arrested on June 21, 2012.
The defendants argue that the plaintiff’s deliberate indifference claims
must be dismissed because they consist only of conclusory allegations. To state
a claim for deliberate indifference to a serious medical need, the plaintiff must
allege facts demonstrating 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 Estelle v. Gamble, 429
U.S. 97, 104-06 (1976). There are both subjective and objective components to
the deliberate indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66
(2d Cir. 1994), cert. denied sub nom. Foote v. Hathaway, 513 U.S. 1154 (1995).
Objectively, the alleged deprivation must be “sufficiently serious.” Wilson v.
Seiter, 501 U.S. 294, 298 (1991). The condition must produce death, degeneration
or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)
(quotation and citation omitted). Subjectively, the defendant must have been
actually aware of a substantial risk that the inmate would suffer serious harm as a
result of his actions or inactions. See Salahuddin v. Goord, 467 F.3d 263, 279-80
(2d Cir. 2006). A difference of opinion regarding what constitutes an appropriate
response and treatment, does not constitute deliberate indifference to a serious
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medical need. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Nor is
negligence sufficient to establish deliberate indifference to a serious medical
need. See Hathaway, 99 F.3d at 553.
The Second Circuit has advised the court to consider several factors in
determining the seriousness of a medical need. These factors include whether a
reasonable doctor or patient would consider the injury important and worthy of
comment or treatment, whether the injury affects daily activities and whether the
injury produces chronic and substantial pain. See Brock v. Wright, 315 F.3d 158,
162 (2d Cir. 2003).
The plaintiff alleges in this claim that Drs. Laplante and Pillai would not
renew a prescription for pain medication that he had received for injuries he
sustained during his arrest by the Hartford Police Department. Plaintiff does not
allege that the doctors were aware of his prescription, nor does plaintiff even
allege that the doctors knew of his alleged injuries. Although plaintiff states that
the doctors refused to renew the prescription because they “do not like [him]”
plaintiff does not even allege that he was seen or treated by either of the
defendant doctors, nor any facts tending to support his conclusion that they did
not like him or denied treatment in reprisal for their dislike of the plaintiff. Even
assuming that plaintiff was seen by the defendant doctors and that they knew of
his injuries, the allegations in the amended complaint amount to at most a
disagreement over treatment, which, as noted above, is not cognizable under
section 1983. The claims against Drs. Laplante and Pillai are thus dismissed
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pursuant to 28 U.S.C. § 1915A(b)(1) without prejudice to refiling with sufficient
factual allegations. However, if plaintiff wishes to re-assert this claim, he must
bring it in a new action, as this claim shares no nexus of fact with the other
claims, and Drs. Laplante and Pillai are not named in any of the other claims.
G. Claims Arising From June/July 2012 Confinement in Windowless Cell
In this claim, the plaintiff also alleges that, while he was a pretrial detainee
at the Hartford Correctional Center, he was held in a cell without a window for 33
days at the direction of Warden Ford. Defendants do not address this claim in
their motion to dismiss. However, conducting an initial review of this claim, the
court concludes that the claim should be dismissed. Plaintiff names only Warden
Ford in this claim, however, plaintiff’s amended complaint contains no facts
showing any personal involvement by Warden Ford. Plaintiff does not allege that
Warden Ford made the decision to put him in a windowless cell, or even that
Warden Ford knew that he was in such a cell. Plaintiff cannot bring a claim
against Warden Ford simply by virtue of his status as warden. "A defendant's
status as warden or commissioner of a prison, standing alone, is . . . insufficient
to establish personal involvement under section 1983." Khapesi v. City of New
York, No. 13 Civ. 4391, 2014 U.S. Dist. LEXIS 79623, at *15 (S.D.N.Y. June 10, 2014)
(quoting Walker v. Schriro, No. 11 Civ. 9299, 2013 U.S. Dist. LEXIS 42551, at *51
(S.D.N.Y. Mar. 26, 2013)). "It is well settled in this Circuit that personal
involvement of defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.” Spavone v. N.Y. State Dep’t of Corr.
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Srvcs., 719 F.3d 127, 135 (2d Cir. 2013) (quotation and citation omitted). Even if
Warden Ford was aware of his grievance, this is insufficient in and of itself
because plaintiff has failed to allege that he followed the established grievance
procedure as required by the PLRA. See supra Part III.A, citing
http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0906.pdf. The claim against Warden
Ford is dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim,
without prejudice to re-filing with allegations as to Warden Ford’s personal
involvement. However, if plaintiff wishes to re-assert this claim, he must bring it
in a new action, as this claim shares no nexus of fact with the other claims, and
Warden Ford is not named in any of the other claims.
H. Claims Arising From September 17, 2012 Finger Injuries
1. Deliberate indifference To Serious Medical Need
In this claim, the plaintiff alleges that his finger was caught in the cell door
and cut to the bone. Courts within the Second Circuit have held that broken
fingers and cut fingers with skin ripped off are not serious medical needs. See,
e.g., Sonds v. St. Barnabas Hosp. Correctional Health Servs., 151 F. Supp. 2d 303,
311 (S.D.N.Y. 2001) (cut finger with skin ripped off is not a serious medical need);
Henderson v. Doe, No. 98 Civ. 5011, 1999 U.S. Dist. LEXIS 8672, at *6-7 (S.D.N.Y.
June 10, 1999) (mere broken finger is not a sufficiently serious medical need).
However, it is also the case that “numerous courts have found objectively serious
injury in cases involving injury to the hand, including broken bones.” Vining v.
Dep’t of Corr., No. 12 Civ. 3267, 2013 U.S. Dist. LEXIS 136195, at *11-12 (S.D.N.Y.
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Apr. 5, 2013) (collecting cases).
The plaintiff alleges that his fingers were cut to the bone and are now
deformed. Upon initial review of the initial complaint, the court determined that
these allegations were sufficient to warrant service of the complaint on defendant
McKenna. IRO at 3. Considering the factors laid out by the Second Circuit, see
supra Part III.F, the court cannot definitively conclude at this time that the plaintiff
did not suffer a serious medical need and that defendant McKenna was not
deliberately indifferent to that need by refusing to call emergency medical
assistance. The motion to dismiss is denied as to the claim against defendant
McKenna.
In the amended complaint, plaintiff has named three additional defendants
in this claim: Drs. Farinella and Gillig, and Warden Erfe. Plaintiff alleges that Drs.
Farinella and Gillig failed to call him to sick call and treat his injury, and that
Warden Erfe worked with defendant McKenna to persuade Drs. Farinella and
Gillig not to treat him. These claims are conclusory at best, as plaintiff does not
allege any facts in support of this alleged conspiracy to deny him treatment.
Legal conclusions in a complaint, even when couched as facts, are not presumed
true. These conclusory statements are insufficient to state a claim. See, e g.,
Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002)
(“conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss” (citation and
quotation omitted)). The defendants’ motion to dismiss is granted as to the
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claims against defendants Farinella, Gillig and Erfe and the claim against
defendant McKenna for persuading medical doctors to not treat the plaintiff, for
failure to state a claim.
2. Negligence
The defendants move to dismiss all negligence claims plaintiff’s amended
complaint. Although plaintiff does not explicitly plead negligence anywhere in his
complaint, it is possible he could be alleging negligence in regards to defendant
McKenna’s actions in closing the cell door on his fingers, as he does not allege
that McKenna acted intentionally in doing so. However, even if the court were to
read such a claim into the complaint, defendants are correct that negligence is
not cognizable under section 1983. See Daniels v. Williams, 474 U.S. 327, 330-33
(1986); see also Munlyn v. Pietrie, No. 13-cv-6170FPG, 2014 U.S. Dist. LEXIS
101274, at *19-20 (W.D.N.Y. July 24, 2014) (noting that claims that “allege[] no
more than a simple claim of negligence . . . [do] not give rise to a cause of action
under § 1983, even if corrections staff had actual or constructive knowledge of
the danger”) (citing Daniels, 474 U.S. 327). Thus, there is no basis for a federal
claim based on negligence.
Additionally, if the plaintiff is attempting to invoke the court’s supplemental
jurisdiction over a negligence claim based on state law, such claim is precluded
by state statute. 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 duties or
within the scope of his employment. Any person having a complaint for
such damage or injury shall present it as a claim against the state under
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the provisions of this chapter.
Conn. Gen. Stat. § 4-165(a). All of the actions allegedly taken by the defendant
were within the scope of their employment, and thus, they are protected from an
award of damages against them in their individual capacities by state law. Any
claims against them must be brought to the State of Connecticut’s Claims
Commissioner. The defendants’ motion to dismiss is granted as to any and all
negligence claims.
I. Claims Arising From March 28, 2013 Assault
Prison officials may not retaliate against inmates for exercising their
constitutional rights. To state a retaliation claim, the plaintiff must allege facts
showing that “(1) his actions were protected by the Constitution or federal law;
and (2) the defendant's conduct complained of was in response to that protected
activity.” Friedl v. City of New York, 210 F.3d 79, 85 (2000) (quotation and citation
omitted). “Evidence that can lead to an inference of improper motive includes: (1)
the temporal proximity of the filing of a grievance and the alleged retaliatory act;
(2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the
matter; and (4) statements by the defendant regarding his motive for disciplining
plaintiff.” Sioleski v. McGrain, No. 10-cv-0665S, 2012 U.S. Dist. LEXIS 1236, at
*11-12 (W.D.N.Y. Jan. 5, 2012) (citing Colon v. Coughlin, 58 F.3d 865, 872-73 (2d
Cir. 1995)). Because claims of retaliation are easily fabricated, the courts consider
such claims with skepticism and require that they be supported by specific facts;
conclusory statements are not sufficient. See, e.g., Flaherty v. Coughlin, 713 F.2d
22

10, 13 (2d Cir. 2003). To support a claim of retaliation, the allegedly retaliatory
conduct must “deter a similarly situated individual of ordinary firmness from
exercising . . . constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.
2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). Any lesser
conduct is de minimis and does not support a retaliation claim. Prisoners may be
required to tolerate more serious conduct than public employees or private
citizens before stating a retaliation claim. See, e.g., Ross v. Correct Care
Solutions, LLC, No. 11 Civ. 8542, 2013 U.S. Dist. LEXIS 131306, at *21 (S.D.N.Y.
Sept. 13, 2013) (quoting Davis v. Goord, 320 F.3d at 353).
The only allegations in the complaint that go to alleged motives of
defendants in this claim is the temporal proximity between the filing of his initial
complaint and the alleged assault. Plaintiff filed his initial complaint against
defendant McKenna on November 8, 2012. The allegedly retaliatory actions took
place four months later. Cf. Smith v. Da Ros, 777 F. Supp. 2d 340, 356 (D. Conn.
2011) (“district courts within the Second Circuit consistently have found that
lapses of more than two or three months between protected activity and allegedly
retaliatory actions do not support inferences of causation.” (citations omitted)).
This is insufficient temporal proximity to demonstrate improper motivation, and
without other allegations of improper motivation, plaintiff has failed to allege a
claim of retaliation.
Further, plaintiff’s allegation of collusion between Lieutenant Aver,
Lieutenant William, Correctional Officer Wayen, Correctional Officer McKenna,
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Warden Erfe, Correctional Officer Hanney, and a John Doe lieutenant is
completely unsupported by any facts. Plaintiff’s allegation that Hanney and the
John Doe lieutenant were acting at the direction of other defendants is
conclusory at best, and is insufficient to support a claim that the assault was
done in retaliation for plaintiff’s complaint against defendant McKenna. Plaintiff
pleads no facts to show any connection between any of these defendants. The
claim of retaliation against defendants William, Aver, Wayen, Erfe, Hanney, and
McKenna are dismissed for failure to adequately allege a claim.
Plaintiff also alleges that “in the pass, plaintiff A.W. field a complaint befor
on L/T Avery and C/o Wayen of Corrigan-R.C.C. for beating plaintiff, head in to the
sement floor, busing plaintiff fourhead open, while plaintiff, A.W. was inside the
cell in handcuff, giving no problem.” Am. Compl. at 9. Even reading the
complaint in the light most favorable to plaintiff, the court cannot decipher this
passage and thus it is not clear from this allegation whether plaintiff is alleging a
claim of retaliation against defendants Aver and Wayen. If plaintiff did file a
grievance against defendants Aver and Wayen sometime in the past, he does not
say when. The claims against Aver and Wayen are dismissed for failure to state a
claim. Further, if plaintiff wishes to bring a claim against defendants Aver and
Wayen for issuing false disciplinary reports to him, such claims have no
connection to the other claims or other defendants, and must be severed. If
plaintiff wishes to re-file the claim, he must file it in a separate lawsuit as they
arise out of a separate incident from the first incident of which the Plaintiff
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complains. Fed. R. Civ. P. 21.
To the extent that the allegations against defendant Hanney regarding the
alleged sexual assault could form the basis for an independent claim against
defendant Hanney, as it is plead now, that claim does not arise from the same
nexus of facts as the other claims in the complaint, and defendant Hanney is not
named in any other claims, and thus the claim must be severed. The claim is
dismissed without prejudice to re-filing in a separate lawsuit. Fed. R. Civ. P. 21.
J. Claims Arising From April 2013 Transfer to MacDougall-Walker Correctional
Institution
Although plaintiff names a number of individuals as defendants in this
action in the body of the complaint, he has not named them in the caption of the
complaint, and thus they are not parties to this action. See supra Part III.D.
Because plaintiff does not allege that any of the named defendants are involved
in the claims regarding his treatment at MacDougall-Walker, those claims are
dismissed. Further, because these claims involve separate factual allegations,
and apparently different defendants, they must be severed, and are dismissed
without prejudice to re-filing them in a new lawsuit. Fed. R. Civ. P. 21.
K. ADA References In Plaintiff’s Amended Complaint
On the front of his amended complaint, plaintiff writes “amended under
A.D.A.,” which the court assumes to be a reference to the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq. Plaintiff includes the same
or similar text in the beginning of each of his claims. The Court construes the
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insertion of this acronym as assertion that each incident violated his rights under
the ADA. These claims are unavailing.
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA
defines “disability” with respect to an individual as “A) a physical or mental
impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12102(A)(1). "The definition of disability in this
Act shall be construed in favor of broad coverage of individuals under this Act, to
the maximum extent permitted by the terms of this Act." 42 U.S.C § 12102(4)(A).
"An impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active." 42 U.S.C. § 12102(4)(D). The
Supreme Court requires that the terms “be interpreted strictly to create a
demanding standard for qualifying as disabled.” Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 197 (2002). The Court considers a major life activity as
one “of central importance to daily life,” such as “walking, seeing, and hearing.”
Id. at 197-98. In addition, the degree of impairment must be significant enough to
substantially limit that activity. See 42 U.S.C. § 12102(1)(A). When analyzing
these claims, “courts have been careful to distinguish impairments which merely
affect major life activities from those that substantially limit those activities.”
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Troeger v. Ellenville Cent. Sch. Dist., 523 F. App’x 848, 852 (2d Cir. 2013) (citation
and quotation marks omitted).
In the amended complaint, the plaintiff has not identified any disabling
condition or program or service he was denied access to because of a disability,
or any constitutional or other right was denied to him because of a condition
defined as a disability under the ADA. The only possible service he could be
referring to is medical care or pain medication for his finger injury, which as
discussed above, supra Part III.H.1, is a claim for deliberate indifference to
serious medical need, not an ADA claim. Plaintiff has not alleged that he has been
excluded from participation in or be denied the benefits of the Services,
programs, or activities of a public entity because of that disability. Thus, he fails
to allege any facts to support an ADA claim. Any claim based on the references to
the ADA in the amended complaint are dismissed pursuant to 28 U.S.C. §
1915A(b)(1) for failure to state a claim.
L. Qualified Immunity
Defendants argue that even if any of plaintiff’s claims are allowed to go
forward, defendants are protected by the doctrine of qualified immunity. The only
claim going forward is plaintiff’s claim for deliberate indifference to a serious
medical need arising from the alleged September 17, 2012 injuries to plaintiff’s
fingers.
Defendant bears the burden of proving the affirmative defense of qualified
immunity. See, e.g., Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013) (citations
27

omitted). To be eligible for qualified immunity, defendant McKenna must prove:
“(1) [her] conduct does not violate a clearly established constitutional right, or (2)
it was ‘objectively reasonable’ for the [defendant] to believe [her] conduct did not
violate a clearly established constitutional right.” Hartline v. Gallo, 546 F.3d 95,
102 (2d Cir. 2008) (citing Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)). The
right to be free from deliberate indifference to a serious medical need has been
clearly-established at least since the Supreme Court’s 1976 decision in Estelle v.
Gamble, 429 U.S. 97 (1976). See Rahman v. Schriro, 22 F. Supp. 3d 305, 316
(S.D.N.Y. 2014) (noting that the “right to be free from deliberate indifference to
serious medical needs’ . . . was clearly established ‘as far back as 1976 by
[Estelle]’” (quoting Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999))). Nor do
defendants argue that such a right was not clearly established at the relevant
time.
The defendants’ belief is objectively reasonable if “‘officers of reasonable
competence could disagree’ on the legality of the action at issue in its particular
factual context.” Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendant has failed to carry
her burden of establishing qualified immunity, as she does not argue that it was
objectively reasonable for her to believe her alleged conduct did not violate a
clearly established constitutional right. Defendant argues that “[q]ualified
immunity affords tolerance for mistakes of judgment traceable to faulty
information or contextual exigencies, such as those facing defendants, doctors
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Farinella, Gillig, LaPlante and Pillai in determining how to treat the plaintiff.” Def.
Mem. at 24. Even assuming that statement is correct, it does not tell the court
whether it was objectively reasonable for defendant McKenna to believe her
alleged conduct did not violate a clearly established constitutional right, or
whether officers of reasonable competence could disagree on the legality of her
actions. The court is thus unable to grant plaintiff’s motion to dismiss on the
grounds of qualified immunity.
IV. PLAINTIFF’S MOTION TO AMEND
On May 30, 2014, plaintiff filed a document that was docketed as a motion
to amend the complaint. However, this document, which itself is nearly
indecipherable, is not styled as a motion, and there is no memorandum filed in
support. What plaintiff has filed appears to be a proposed second amended
complaint. Even if the court were to treat it as a properly filed motion to amend
the complaint, the court would not grant the motion. Although the court should
grant leave to amend where justice so requires, Federal Rule of Civil Procedure
15(a)(2), there is an underlying assumption that an amended complaint will clarify
or amplify the original cause of action, not add new causes of action. See, e.g.,
Klos v. Haskell, 835 F. Supp. 710, 715 n.3 (W.D.N.Y. 1993), aff’d, 48 F.3d 81 (2d Cir.
1995). The proposed second amended complaint fails to include any new
allegation that would alter the court’s ruling on the defendants’ motion to dismiss
or the court’s initial review of plaintiff’s claims. Instead, it appears to be
reasserting plaintiff’s allegation that he has an ADA claim, as plaintiff writes: “The
29

plaintiff, Alvin Wilson, whos handicap 51-year-old, filed the operative amend
complaint with this court on 4-28-2014 add a American with disabilities act,
(“A.D.A.”) the fact that it provides that a claims that plaintiff bring these claims in
defendants official capacity for money damages, how, ever, these claims includes
claims pursuant to the A.D.A.” Proposed Am. Compl. at 4. Even assuming that the
disability about which plaintiff complains arises from the injuries alleged in this
lawsuit, an ADA claim is an entirely separate cause of action, requiring different
factual evidence, and presumably involving different defendants, and are thus
unrelated to the claims asserted in this action. To the extent that he now wishes
to assert a proper ADA claim, he may do so in a new lawsuit. Further, leave to
amend a complaint should not be granted where amendment would be futile, as it
would be here because plaintiff has failed to plead that he is disabled under the
ADA. See Fed. R. Civ. P. 15(a)(2); see also Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (finding leave to replead would be futile where the complaint, even
when read liberally, did not “suggest[ ] that the plaintiff has a claim that she has
inadequately or inartfully pleaded and that she should therefore be given a
chance to reframe”). Plaintiff’s motion to amend is denied.
CONCLUSION
The defendant’s motion to dismiss is granted in part and denied in part for
the reasons described above. Further, certain of plaintiff’s claims are dismissed
on initial review pursuant to 28 U.S.C. § 1915A. The only claim remaining before
the court is plaintiff’s claim of deliberate indifference to a serious medical need
30

against defendant McKenna. All other claims are dismissed, and the Clerk is
ordered to terminate from the docket all defendants except defendant McKenna.
The Clerk is directed to change defendant McKenna’s name on the docket so that
defendant is identified as “Brooke McKenna” on the docket.
The plaintiff’s motion to once again amend his complaint is denied without
prejudice to the plaintiff pursuing an ADA claim in a separate action.
Finally, pursuant to the IRO, all motions for summary judgment were due
April 28, 2014. Although that date has long passed, because the plaintiff was
allowed to file an amended complaint, the court will extend the summary
judgment deadline to thirty-five (35) days from the date of this opinion. The
parties’ summary judgment briefs are due on or before May 5, 2015. If no
summary judgment motions are filed, the parties’ Joint Trial Memorandum will be
due July 13, 2015, and jury selection will take place August 17, 2015. If either
party files a motion for summary judgment, the parties’ Joint Trial Memorandum
will be due November 2, 2015, and jury selection will take place December 1, 2015.
The parties’ Joint Trial Memorandum must conform strictly to the court’s
standing Joint Trial Memorandum Order that is available on the court’s website
and will be uploaded to the docket. The Clerk is also directed to send a copy of
the Joint Trial Memorandum Order to plaintiff along with this opinion.
SO ORDERED at Hartford, Connecticut this 31st day of March, 2015.

/s/
Vanessa L. Bryant
United States District Judge
31