Lurry v. Ford et al
ORDER. For the reasons stated herein, Defendants' 14 Motion to Dismiss is GRANTED. The Clerk is directed to enter judgment in favor of the defendants and to close this case. Signed by Judge Michael P. Shea on 3/5/2014. (Best, Z)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDWARD LURRY, JR.,
WARDEN FORD, et al.,
Case No. 3:13-cv-1157 (MPS)
RULING ON DEFENDANTS’ MOTION TO DISMISS [Doc. #15]
The plaintiff, a parolee and pro se, has filed a complaint under 42 U.S.C. § 1983. In his
complaint he names nine defendants: Warden Ford, Commissioner Dzurenda, Parole Officer
Supervisor Richard Anderson, Parole Officer Karen Lindley, Parole Officer Carolyn Mullen,
Board of Pardons and Paroles Chairman Erika Tindill, Counselor Supervisor Clapp, Parole
Hearing Officer Cardona and Warden Chapdelaine.1 The plaintiff alleges that he was denied
procedural due process when he was brought to a correctional facility and charged with violating
parole. The plaintiff seeks punitive, monetary, nominal and compensatory damages.
By Initial Review Order filed August 29, 2013, the court dismissed all claims for
damages against the defendants in their official capacities. The defendants now move to dismiss
all remaining claims. For the reasons that follow, the defendants’ motion is granted.2
The plaintiff incorrectly spells Warden Chapdelaine’s name as Chapdellane and
Chapdeliane in the complaint. He also misspells Parole Officer Mullen’s name. See Doc. #12.
The court uses the correct spellings.
The plaintiff received notice of his obligation to respond to the motion and the
consequences of failing to respond. See Doc. #16. The response was due on January 28, 2014.
Although a month has passed, the plaintiff has neither filed opposition papers nor sought an
On May 22, 2013, the plaintiff was remanded to the custody of the Connecticut
Department of Correction. Defendants Lindley and Mullen brought him to Hartford Correctional
Center. On May 29, 2013, the plaintiff submitted an inmate request seeking the date, time and
location of his parole revocation hearing. He contends that Administrative Directive 9.2, Section
13(a)(b)(c) entitles him to the revocation hearing. The plaintiff did not receive a response to his
request from any counselor or counselor supervisor at Hartford Correctional Center.
On May 30, 2013, the plaintiff was transferred to Osborn Correctional Institution. He
wrote weekly requests seeking information about a parole revocation hearing. Recipients of his
letters included defendants Clapp, Mullen, Anderson, Tindill, Cardona and Dzurenda. In the
letters, the plaintiff stated that he was entitled to notification of the date, time, and location of his
parole revocation hearing within 72 hours and that he was entitled to a reclassification hearing
within 14 days of reincarceration. The plaintiff did not receive any responses to his letters.
On June 19, 2013, the plaintiff submitted a grievance to defendant Chapdelaine regarding
an alleged violation of his right to due process. He also submitted grievances to defendants
Tindill, Mullen and Anderson. Defendant Chapdelaine denied the grievance. He appealed the
denial on July 5, 2013, and had not received a response as of the time he filed the complaint.
The plaintiff contends that the defendants also have not provided him a copy of the
documentation of his remand as required by Administrative Directive 9.2, section 13 D(1). He
also did not receive any paperwork regarding the violation of special parole to prepare himself
for the parole revocation hearing.
extension of time within which to do so.
The plaintiff states that he was classified as Risk Level 1 before his release from custody.
Administrative Directive 9.2, section 13, requires that inmates who were at Risk Level 1 and
whose community transfer has been revoked, must be afforded a risk level reclassification
hearing within 14 days of their return to a correctional facility. The plaintiff contends that this
provision applies to inmates under transitional supervision, residential program placement and
On July 8, 2013, the plaintiff spoke to defendant Chapdelaine regarding his grievance.
Although she told the plaintiff she would look into the lack of notice regarding the parole
revocation hearing, the plaintiff heard nothing further. Defendant Clapp informed the plaintiff
that he has no responsibility for these matters.
Standard of Review
When considering a motion to dismiss, the court accepts as true all factual allegations in
the complaint and draws inferences from these allegations in the light most favorable to the
plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Flores v. Southern Peru Copper
Corp., 343 F.3d 140, 143 (2d Cir. 2003). The court also may consider matters of which judicial
notice may be taken, such as court rulings and prison directives. See Staehr v. Hartford
Financial Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (when considering a motion to
dismiss, courts routinely take judicial notice of documents filed in other cases); Christman v.
Skinner, 468 F.2d 723, 726 (2d Cir. 1972) (court can take judicial notice of prison regulations
when considering a motion to dismiss). The court considers not whether the plaintiff ultimately
will prevail, but whether he has stated a claim upon which relief may be granted so that he
should be entitled to offer evidence to support his claim. See Walker v. Schult, 717 F.3d 119,
124 (2d Cir. 2013).
In reviewing the complaint in response to a motion to dismiss, the court applies “a
‘plausibility standard,’ which is guided by two working principles.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). First, the requirement that the court accept as true the allegations in the
complaint “‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Second, to survive a motion to
dismiss, the complaint must state a plausible claim for relief. Determining whether the
complaint states a plausible claim for relief is “‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556
U.S. at 679). The court must be able to draw a reasonable inference from the alleged facts that
the defendant is liable for the alleged misconduct. See Walker, 717 F.3d at 124 (citing Iqbal,
556 U.S. at 678). Even under this standard, however, the court liberally construes a pro se
complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Walker, 717 F.3d at
The plaintiff contends that the denial of prompt notification of the date, time and location
of a parole revocation hearing and the failure to schedule a prompt reclassification hearing
violated his Fourteenth Amendment right to procedural due process and his Eighth Amendment
right to be free from cruel and unusual punishment. The defendants move to dismiss the
complaint on the grounds that the plaintiffs’ request for declaratory and injunctive relief is
moot,3 defendants Tindill and Cardona are protected by absolute judicial immunity, the plaintiff
fails to allege the personal involvement of many of the defendants in the incidents underlying his
claims, the plaintiff fails to state a cognizable due process claim, the plaintiff fails to state a
cognizable Eighth Amendment claim and the defendants are protected by qualified immunity.
The defendants argue that the plaintiff fails to allege facts indicating how several
defendants were involved in his claims. To state a claim for damages against a defendant under
section 1983, the plaintiff must allege facts showing the defendant’s personal involvement in the
alleged deprivation of his constitutional rights. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
State law provides that the Board of Pardons and Paroles has independent decisionmaking authority to establish conditions of special parole and rescind or revoke special parole.
Conn. Gen. Stat. § 54-124a(f).4 Defendants Ford, Dzurenda, Chapdelaine and Clapp are
employed by the Connecticut Department of Correction, not the Board of Pardons and Paroles,
Although the defendants include argument relating to declaratory and injunctive relief,
the plaintiff clearly specifies in his prayer for relief that he seeks damages only.
Connecticut General Statutes, Section 54-124a(f) provides:
The Board of Pardons and Paroles shall have independent
decision-making authority to (1) grant or deny parole in
accordance with sections 54-125, 54-125a, 54-125e and 54-125g,
(2) establish conditions of parole or special parole supervision in
accordance with section 54-126, (3) rescind or revoke parole or
special parole in accordance with sections 54-127 and 54-128, (4)
grant commutations of punishment or releases, conditioned or
absolute, in the case of any person convicted of any offense against
the state and commutations from the penalty of death in
accordance with section 54-130a.
which is an autonomous state agency. See www.ct.gov/bopp (last visited Feb. 25, 2014). Parole
revocation hearings are held by the Board of Pardons and Paroles. See Conn. Gen. Stat. § 54127a.
The plaintiff alleges that he wrote letters to defendants Clapp, Chapdelaine and
Dzurenda, that defendant Clapp told him he had no responsibility for scheduling a parole
revocation hearing, and that defendant Chapdelaine told him that she would look into the matter.
The plaintiff does not allege that defendant Ford took any action or was informed of the
plaintiff’s concerns. In addition, Parole Officers Mullen and Lindley and Parole Officer
Supervisor Anderson are employed by the Department of Correction. See Conn. Gen. Stat. §
540124a(g) (providing that the Department of Correction is responsible for supervising persons
on parole or special parole). As the Department of Correction and its employees have no control
over parole revocation hearings, these defendants have no involvement in the alleged failure to
schedule a prompt hearing. Defendant Chapdelaine’s agreement to look into the matter is
insufficient to render her liable for any failure by others to schedule the hearing. See, e.g.,
Sunnen v. U.S. Dep’t of Health and Human Servs., No. 13 Civ. 1242(PKC), 2013 WL 1290919,
at * 3 (S.D.N.Y. Mar. 28, 2013) (contacting official who had no authority to correct alleged
violation of rights insufficient to establish personal involvement); Johnson v. Wright, 234 F.
Supp. 2d 352, 363 (S.D.N.Y. 2002) (writing letters to individuals with no authority to correct
violation of rights fails to establish personal involvement). The defendants’ motion to dismiss is
granted as to the claims regarding scheduling and notification of a parole revocation hearing
against defendants Dzurenda, Ford, Chapdelaine, Clapp, Mullen, Lindley, and Anderson.
Due Process Claim
The plaintiff contends that the failure to schedule prompt parole revocation and
reclassification hearings violated his right to due process of law. He bases his due process claim
on Administrative Directive 9.2, Section 13, entitled “Risk Level Reclassification from
Community Placement.” This section applies to inmates who are “remanded to custody and
whose community transfer has been revoked[.]” See Administrative Directive 9.2, § 13,
www.ct.gov/doc/LIB/doc/PDF/AD/ad0902.pdf (last visited Feb. 24, 2014). Elsewhere, the
directive defines community release programs as Transitional Supervision, designed for inmates
sentenced to a definite total effective sentence of two years or less, and Residential Program
Placement, for inmates meeting other criteria and who are within eighteen months of their
estimated discharge date or voted to parole date. See Administrative Directive 9.2, § 11.
The court takes judicial notice of the May 28, 2009 judgment mittimus filed in the
plaintiff’s criminal case, No. WWM-CR07131130-T, which states that the plaintiff was
sentenced to a term of imprisonment of 54 months followed by five years special parole. See
Defs.’ Mem. Ex. B, Doc. #15-2 at 2. Because he was sentenced to a term of imprisonment
longer than two years, the plaintiff was not eligible for the Transitional Supervision program.
The plaintiff’s crime occurred on February 3, 2007. When he was remanded, the plaintiff
immediately sought a parole revocation hearing. This action along with the fact that, allowing
for pretrial detention credit as indicated on the mittimus, the 54 month sentence would have
expired, leads the court to infer that the plaintiff was serving his term of special parole when he
was remanded to custody. Inmates are eligible to participate in the Residential Program
Placement before they are released on parole. The plaintiff did not meet this eligibility
requirement. Thus, the plaintiff was not remanded from a community placement falling within
the purview of section 13. Because the section does not apply to the plaintiff’s circumstances,
any due process claim arising from the defendants’ failure to comply with the specific
requirements of the directive necessarily fails.
State regulations provide that a parole revocation hearing should be held no later than
sixty business days from the date of remand. See Conn. Agencies Regs. § 54-124a(j)(1)-9(a)
(“Parole revocation matters not resolved earlier shall proceed to a revocation hearing not later
than sixty business days from remand unless continued for good cause.”). The plaintiff signed
his complaint on July 23, 2013, 42 business days after he was remanded to custody. Thus, any
claim regarding untimely scheduling of a parole revocation hearing is premature. The
defendants’ motion to dismiss is granted as to the due process claims arising from the failure to
schedule a parole revocation hearing.
Eighth Amendment Claim
The plaintiff alleges that the denial of a prompt hearing resulted in his unjustified
incarceration in violation of the Eighth Amendment. The defendants contend that the plaintiff
has alleged no facts to support an Eighth Amendment violation.
It is undisputed that the treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment’s prohibition against
cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). To state an
Eighth Amendment claim for unconstitutional conditions of confinement, the plaintiff must
allege facts demonstrating that prison officials have denied his “basic human needs - e.g., food,
clothing, shelter, medical care, and reasonable safety.” DeShaney v. Winnebago County Dep’t of
Social Servs., 489 U.S. 189, 200 (1989).
To state an Eighth Amendment claim for unconstitutional conditions of confinement, the
plaintiff must allege facts supporting “both an objective element–that the prison officials’
transgression was ‘sufficiently serious’–and a subjective element–that the officials acted, or
omitted to act, with a ‘sufficiently culpable state of mind,’ i.e., with ‘deliberate indifference to
inmate health or safety.’” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Farmer
v. Brennan, 511 U.S. 825, 834 (1994)). The objective element is satisfied if the plaintiff can
allege facts showing that the deprivation of his rights is sufficiently serious. De minimis levels
of imposition on inmate rights do not constitute a constitutional violation. See Bell v. Wolfish,
441 U.S. 520, 539 n.2 (1979). Whether a deprivation is sufficiently serious to violate the Eighth
Amendment is influenced by contemporary standards of decency. See Walker, 717 F.3d at 125.
The subjective element requires the plaintiff to show that the defendants were aware of and
disregarded a substantial risk of serious harm. See Phelps, 308 F.3d at 185-86. The defendants
“must both be aware of facts from which the inference could be drawn that a substantial risk of
serous harm exists, and ... must also draw the inference.” Farmer, 511 U.S. at 837.
The plaintiff alleges no facts regarding the conditions of his confinement. He does not
indicate that he was denied food, clothing, shelter or medical care, or that he otherwise was
exposed to conditions posing an unreasonable risk of harm to his health or safety. Absent such
allegations, the plaintiff fails to satisfy the objective prong of the test and fails to state a plausible
Eighth Amendment claim. The defendants’ motion to dismiss is granted as to the Eighth
The defendants’ motion to dismiss [Doc. #23] is GRANTED. The Clerk is directed to
enter judgment in favor of the defendants and close this case.
SO ORDERED this 5th day of March 2014 at Hartford, Connecticut.
Michael P. Shea
United States District Judge
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