Brown v. Tuttle
Filing
91
ORDER denying 62 Motion for Summary Judgment without prejudice; granting in part and denying in part 81 Motion to Amend/Correct. Signed by Judge Victor A. Bolden on 6/24/2015. (Dearing, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KENYA BROWN,
Plaintiff,
v.
CASE NO. 3:13-cv-1444(VAB)
J. TUTTLE, DMD,
Defendant.
RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND MOTION TO AMEND THE COMPLAINT
Plaintiff, Kenya Brown, is currently confined at the Corrigan-Radgowski Correctional
Institution (“Corrigan”) in Uncasville, Connecticut. He brought this civil rights action pro se
alleging First, Eighth, and Fourteenth Amendment violations by Dr. Joann Tuttle. Compl., ECF
No. 1. On December 6, 2013, Magistrate Judge Margolis recommended that the First and
Fourteenth Amendment claims be dismissed and that the Eighth Amendment deliberate
indifference to dental and medical needs claims proceed. Recommended Ruling, ECF No. 8. On
April 11, 2014, United States District Judge Arterton approved and adopted the Recommended
Ruling. Order Approving Recommended Ruling, ECF No. 27.
Mr. Brown now has filed a Motion for Summary Judgment, ECF No. 62, and a Motion
for Leave to File an Amended Complaint, ECF No. 81. For the reasons set forth below, the
Motion for Summary Judgment is DENIED and the Motion to Amend the Complaint is
GRANTED IN PART and DENIED IN PART.
I.
Motion for Summary Judgment [ECF No. 62]
Mr. Brown moves for summary judgment on the only remaining claim from the
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Complaint. Mot. for Summ. J. 1, ECF No. 62. In a motion for summary judgment, the burden is
on the moving party to establish that there are no genuine issues of material fact in dispute and
that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). The moving party may satisfy this burden by
demonstrating the lack of evidence to support the nonmoving party’s case. See PepsiCo, Inc. v.
Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam). A court must grant summary
judgment if the pleadings, discovery materials and any affidavits on file show that there is no
genuine issue as to any material fact. See Miner v. Glen Falls, 999 F.2d 655, 661 (2d Cir. 1993).
A dispute regarding a material fact is genuine if there is sufficient evidence that a reasonable jury
could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.
Plaintiff Brown’s Motion for Summary Judgment consists of three pages of discussion,
an exhibit list, and a Local Rule 56(a)1 Statement, which presents a mix of facts and legal
argument and, at times, cites to the initial Complaint to support factual assertions. In the Motion,
Mr. Brown summarizes his Eighth Amendment claims and seeks judgment in his favor. After
filing the Motion for Summary Judgment, Mr. Brown moved for leave to amend the Complaint
to add new defendants and new claims against the existing Defendant. Thus, it seems the Motion
for Summary Judgment was filed prematurely, and it is denied on that basis. See Crystalline
H20, Inc. v. Orminski, 105 F. Supp.2d 3, 8 (N.D.N.Y. 2000) (“The Second Circuit has denied
motions for summary judgment as premature in cases where [the] nonmoving party did not have
a fully adequate opportunity for discovery at the time the moving party sought summary
judgment.”) (citation and internal quotation marks omitted).
Even if Mr. Brown had not filed a Motion to Amend the Complaint, the Court still would
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deny the Motion for Summary Judgment because it fails to comply with federal and local rules.
See Carovski v. Jordan, No. 06-CV-716S, 2011 WL 1362624, at * 3 (W.D.N.Y. Apr. 11, 2011)
(denying a summary judgment motion for failure to comply with Local Rule 56) (collecting
cases denying summary judgment for failure to comply with federal and local rules); see also
Fed. R. Civ. P. 56(a), 56(c); see also D. Conn. L. Civ. R. 7, 56. While the submissions of a pro
se litigant “must be construed liberally and interpreted to raise the strongest arguments that they
suggest… pro se parties are not excused from abiding by the Federal Rules of Civil Procedure.”
Wilks v. Elizabeth Arden, Inc., 507 F. Supp.2d 179, 185 (D. Conn. 2007) (citations and internal
quotation marks omitted). Mr. Brown’s submission fails to comply with the rules because he has
not submitted a proper Local Rule 56(a)1 Statement and his memorandum cites no law or
evidence that shows he is entitled to judgment as a matter of law. D. Conn. L. Civ. R. 56(a);
Fed. R. Civ. P. 56(a).
Local Rule 56(a)1 requires that a motion for summary judgment be accompanied by “a
document entitled ‘Local Rule 56(a)1 Statement,’ which sets forth in separately numbered
paragraphs a concise statement of each material fact as to which the moving party contends there
is no genuine issue to be tried.” Local Rule 56(a)3 requires that each statement in the Rule
56(a)1 Statement “must be followed by a specific citation to (1) the affidavit of a witness
competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.
The affidavits, deposition testimony, responses to discovery requests, or other documents
containing such evidence shall be filed and served” with the Local Rule 56(a)1 Statement. This
citation requirement applies to pro se litigants as well as to attorneys.
Although Mr. Brown has filed a document entitled Local Rule 56(a)1 Statement with
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citations to exhibits, ECF No. 62-1, this document improperly cites to Mr. Brown’s Complaint
to establish facts and contains legal conclusions, see e.g., ¶160, and legal arguments, see e.g.,
¶170. Moreover, Mr. Brown has not submitted any exhibits with the Statement as required by
Local Rule 56(a)3. Nor has he filed an affidavit in support of the Motion for Summary
Judgment. Thus, his Motion for Summary Judgment fails to comply with the Court’s rules and
must be denied. See Carovski, 2011 WL 1362624, at * 3; see also D. Conn. L. Civ. R. 56(a)1,
56(a)3.
Finally, Mr. Brown’s memorandum cites no law. In order for the Court to grant a motion
for summary judgment, the moving party must refer to both case law and facts obtained during
the course of discovery and explain how both show that he is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(a); see also Giannullo v. City of New York, 322 F.3d 139, 140-41 (2d
Cir. 2003) (“[W]here the movant fail[s] to fulfill its initial burden of providing admissible
evidence of the material facts entitling it to summary judgment, summary judgment must be
denied, even if no opposing evidentiary matter is presented.”) (internal quotation marks and
citations omitted) (alterations in original). For all of these reasons, Mr. Brown’s Motion for
Summary Judgment, ECF No. 62, is DENIED without prejudice to renewal after discovery is
complete.
II.
Motion to Amend the Complaint [ECF No. 81]
On April 22, 2014, Mr. Brown moved for leave to amend the Complaint. Mot. to Amend
Compl., ECF No. 32. On July 30, 2014, the Court denied the motion without prejudice to
renewal after a ruling on the Plaintiff’s Motion for Reconsideration of the Court’s Order
approving and adopting the Recommended Ruling dismissing the Complaint in part. Ruling on
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Multiple Mots., ECF No. 53. On December 18, 2014, the Court granted the Motion for
Reconsideration in part, considered Mr. Brown’s objection to the Recommended Ruling and
overruled the objection. Order, ECF No. 80. Plaintiff Brown has renewed his Motion for Leave
to File an Amended Complaint. Mot. to Amend Compl., ECF No. 81.
Mr. Brown seeks leave to file an Amended Complaint to add claims against Defendant
Tuttle and to add six new Defendants, namely Raquel Lightner, Grievance Coordinator Lisa
Candelario, Dental Assistant Arlaina Duffy, Erin Nolm, Captain Van and Medical Grievance
Coordinator Steven Swan. Mr. Brown may not amend his Complaint as of right, because he fails
to meet the requirements of Rule 15(a)(1). Fed. R. Civ. P. 15(a)(1). However, after the time to
amend as of right has passed, “[t]he court should freely” grant leave to amend “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). In considering whether to grant a litigant leave to amend, the
Court considers such factors as undue delay, bad faith, dilatory motive, undue prejudice and
futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962). For the reasons that
follow, Mr. Brown’s Motion for Leave to Amend the Complaint, ECF No. 81, is GRANTED IN
PART and DENIED IN PART.
A.
Background
The allegations in the Complaint relate to dental treatment provided by Defendant Tuttle
in an effort to repair a chip in Mr. Brown’s tooth number eighteen. In the Complaint and the
Proposed Amended Complaint, Mr. Brown alleges that Defendant Tuttle gave him a total of
thirteen shots of Septocaine or Lidocaine over a period of three hours despite her knowledge that
Mr. Brown suffered from high blood pressure. Proposed Am. Compl. at Meritorious Legal
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Claims ¶¶49-50, ECF No. 81-1.1 He claims that none of the shots of Septocaine or Lidocaine
were administered close enough to the chipped tooth and they failed to numb that area. Id. ¶¶4547, 57. Thus, when Defendant Tuttle began to drill into the chipped tooth, Mr. Brown alleges
that he experienced pain immediately. Id. ¶¶53-54. Defendant Tuttle allegedly continued to drill
into the tooth, despite knowing that Mr. Brown was experiencing severe pain. Id. ¶¶55-56, 6162.
After creating a large hole in the tooth, Defendant Tuttle allegedly declared that the tooth
could not be fixed. Id. ¶¶64-65. Mr. Brown alleges that Defendant Tuttle attempted to cover the
hole but was unsuccessful and the nerve of that tooth remained exposed. Id. ¶¶67-69. Mr.
Brown claims that Defendant Tuttle refused to provide him with medication for pain. Id. ¶¶7576, 115. She then allegedly concocted a story that Mr. Brown had inappropriately touched her
during the procedure and reported this behavior to correctional staff. Id. ¶¶82-87, 96. According
to the Complaint, after Defendant Tuttle reported the story, correctional staff issued Mr. Brown a
disciplinary report for assaulting staff and escorted him to the segregation unit. Id. ¶98. While in
the segregation unit, Mr. Brown allegedly was meeting with mental health counselors when he
was “sprayed” by an officer who believed he had a sheet around his neck. Id. ¶¶ 102-106. He
allegedly experienced a rapid heart rate during the first two days of his confinement in the
segregation unit, id. ¶¶ 108-9, and experienced severe pain in tooth number eighteen from July
15 to July 31, id. ¶¶ 113-14.
After investigating Defendant Tuttle’s accusations, correctional staff allegedly
1
For the sake of convenience, this section of the Ruling will cite to the Proposed Amended Complaint,
but the Court recognizes that the claims summarized in this Background section were set out in the initial
Complaint, ECF No. 1.
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determined that her story had many inconsistencies. Id. ¶¶119-20. Thus, on July 31, 2013, the
Complaint indicates that a disciplinary hearing officer dismissed the tickets for assaulting a
Department of Correction employee and for interfering with safety and security. Id. ¶¶117-22.
B.
New Defendants
In his Proposed Amended Complaint, Mr. Brown claims for the first time in this lawsuit
that he wrote to Raquel Lightner about the inappropriate behavior and treatment provided by
Defendant Tuttle, that he informed Erin Nolm of the same, and also that he contacted Grievance
Coordinator Lisa Candalario. Id. ¶¶125-27, 134, 136.
Mr. Brown alleges that Erin Nolm contacted Dr. Reichler, a dentist at “Walker,”
regarding the Plaintiff’s tooth. Id. ¶ 128-29. On August 12, 2013, Dr. Reichler allegedly
examined Mr. Brown and found a large hole in his tooth and an infection. Id. ¶¶129-30. He
prescribed him medication. Id. ¶131. On August 13, 2013, Erin Nolm allegedly confronted
Defendant Tuttle regarding Mr. Brown’s dental care and the accusations of inappropriate
touching. Id. ¶137. On August 15, 2013, Defendant Tuttle also allegedly “confronted” Captain
Van about the Plaintiff’s accusations and grievances. Id. ¶138. After meeting with Captain Van,
Mr. Brown claims that Defendant Tuttle submitted a separation profile, titled “Sexual Predator
Profile,” seeking to prevent any contact between herself and Mr. Brown in the future. Id. ¶¶13940, 153-54. Shortly after the filing of the separation profile, Mr. Brown claims that prison
officials at MacDougall Walker Correctional Institution (“MacDougall”) transferred him to
Corrigan. Id. ¶¶ 143-44. Mr. Brown claims that Captain Van and Defendant Tuttle were
instrumental in having him transferred to another prison facility and did so in response to his
complaints and grievances regarding Defendant Tuttle’s dental treatment and behavior. Id. ¶¶
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143-44, 156-57, 159-60.
At Corrigan, Mr. Brown allegedly continued to file grievances about Defendant Tuttle’s
treatment. Id. ¶ 145. Mr. Brown claims that Grievance Coordinator Swan made attempts to
contact Raquel Lightner regarding the Plaintiff’s grievances. Id. ¶¶ 147, 151-52. He also claims
that Swan failed to timely respond to the grievances. Id. ¶¶148-49.
The Proposed Amended Complaint includes twenty claims under the First, Eighth and
Fourteenth Amendments. Id. at 18-23. The Plaintiff named all of the Defendants, both proposed
and current, in their individual capacities and seeks money damages. Id. at 23, Parties at ¶ 4.
1.
Raquel Lightner, Lisa Candelario, and Steven Swan
Mr. Brown seeks to add claims that Lisa Candelario, Steven Swan, and Raquel Lightner
did not respond to or properly process his grievances regarding the conduct of Defendant Tuttle.
See id. at Legal Claims, Counts Four, Five, Six, and Nineteen. “It is well established [ ] that
inmate grievances procedures are undertaken voluntarily by the states, that they are not
constitutionally required, and accordingly that a failure to process, investigate or respond to a
prisoner’s grievances does not in itself give rise to a constitutional claim.” Swift v. Tweddell,
582 F. Supp. 2d 437, 445-46 (W.D.N.Y. 2008) (collecting cases). Thus, the alleged failure of
Swan, Lightner and Candelario to process or respond properly to Mr. Brown’s Inmate Remedy
requests or grievances did not violate any of his constitutionally or federally protected rights.
See Pocevic v. Tung, No. 3:04CV1067 (CFD), 2006 WL 680459, at *8 (D. Conn. Mar. 14,
2006)(“The [C]ourt can discern no federally or constitutionally protected right that was violated
by defendant[‘s] failure to comply with the institutional procedures regarding the timing of his
response to [plaintiff’s] level 2 grievance”). Accordingly, the Court will not permit Mr. Brown
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to amend the Complaint to add the claims against them regarding his grievances. Since these are
the only claims made against Candelario and Swan, the Court denies Mr. Brown’s request to add
them as parties.
2.
Arlaina Duffy
Mr. Brown also seeks to add Dental Assistant Arlaina Duffy who was present when
Defendant Tuttle attempted to fix his chipped tooth. See Proposed Am. Compl. at Meritorious
Legal Claims ¶¶ 33, 38-39, 70, 74, ECF No. 81-1. Mr. Brown claims that Assistant Duffy did
not intervene to prevent Defendant Tuttle from engaging in improper dental procedures. Id. at
Legal Claims, Counts Seven, Seventeen, and Eighteen. The allegations in the Proposed
Amended Complaint, however, suggest that Assistant Duffy attempted to dissuade Defendant
Tuttle from some of the conduct that caused the Plaintiff pain. Id. at Meritorious Legal Claims
¶¶58, 83, 85-86. In addition, Mr. Brown concedes that immediately after the accusation by
Defendant Tuttle regarding inappropriate contact, Assistant Duffy informed correctional staff
that she had not observed any improper behavior by Mr. Brown and had been present in the room
during the entire time Mr. Brown and Defendant Tuttle were together. Id. ¶47. Thus, the
Plaintiff has not alleged that Assistant Duffy was deliberately indifferent to his health or safety.
See Bryant v. Wright, 451 F. App’x 12, 14 (2d Cir. 2011) (dismissing a complaint alleging
doctors acted with deliberate indifference in prescribing a generic drug with side effects, in part
because the doctors were “trying to stop” the side effects); Farmer v. Brennan, 511 U.S. 825,
837 (1994) (“[A] prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety.”); see also Wright v. Genovese, 694 F.Supp.2d 137,
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157-58 (N.D.N.Y. 2010) (granting defendant’s summary judgment motion on a deliberate
indifference claim against a doctor because the doctor “took additional steps” to prevent harm to
the plaintiff), aff’d, 415 F. App’x 313 (2d Cir. 2011). The request to add Assistant Duffy as a
Defendant is denied and all claims against her are dismissed.
3.
Captain Van
Mr. Brown seeks to add a claim of retaliation and a so-called “due process” claim against
Defendant Tuttle and Captain Van in connection with his transfer to another prison facility.
Proposed Am. Compl. at Legal Claims, Counts One, Three, and Twenty, ECF No. 81-1. Mr.
Brown alleges that over two weeks after the disciplinary report for sexual assault had been
dismissed, Defendant Tuttle approached Captain Van about filing a separation profile against
Mr. Brown in an effort to have him transferred out of MacDougall. Id. at Meritorious Legal
Claims ¶¶139-41, 143, 155-60. Mr. Brown claims that Captain Van was aware that he had been
exonerated regarding the charge that he had inappropriately touched Defendant Tuttle. Id. ¶156.
Despite this knowledge, Captain Van allegedly facilitated the filing of the separation profile,
resulting in his transfer out of MacDougall in retaliation for the Plaintiff’s submission of
grievances against Defendant Tuttle. Id. ¶¶157-161. According to the Proposed Amended
Complaint, prison officials transferred Mr. Brown shortly after the separation profile was
completed. Id. ¶143-44.
To the extent that Mr. Brown claims that his transfer to another prison facility constitutes
a due process violation in Count Twenty, the claim fails. An inmate has no right to be housed at
a particular prison facility. See Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (inmates have no
right to be confined in a particular state or a particular prison within a given state); Meachum v.
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Fano, 427 U.S. 215, 225 (1976) (transfer among correctional facilities, without more, does not
violate inmate’s constitutional rights, even where conditions in one prison are “more
disagreeable” or the prison has “more severe rules”). Thus, the transfer of an inmate from one
facility to another does not state a claim upon which relief may be granted. The Court will not
permit the Plaintiff to add a claim that his transfer from MacDougall constituted punishment or a
due process violation under the Eighth or Fourteenth Amendments. Thus, Count Twenty of the
Proposed Amended Complaint is dismissed.
The claim that Captain Van and Defendant Tuttle were involved in the decision to submit
a separation profile and have Mr. Brown transferred to another facility because of his complaints
and grievances against Defendant Tuttle states a plausible retaliation claim. Proposed Am.
Compl. at Legal Claims, Counts One and Three, ECF No. 81-1. “[T]o survive a motion to
dismiss a complaint, a plaintiff asserting First Amendment retaliation claims must allege (1) that
the speech or conduct at issue was protected, (2) that the defendant took adverse action against
the plaintiff, and (3) that there was a causal connection between the protected speech and the
adverse action.” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (citation and internal
quotation marks omitted). Mr. Brown alleges that shortly after he made complaints and filed
grievances about Defendant Tuttle, Captain Van and Defendant Tuttle submitted a separation
profile that resulted in him being transferred to another facility. These allegations state a valid
retaliation claim. See Davis, 320 F.3d at 352-53 (“filing of prison grievances is a constitutionally
protected activity”); see also Morales v. Mackalm, 278 F.3d 126, 131-32 (2d Cir. 2002) (finding
plaintiff had stated a valid retaliation claim where there was a short period of time between the
protected activity and the retaliatory transfer and the defendants were involved in the decision to
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transfer the inmate), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516, 523 (2002).
The motion to add this retaliation claim and Captain Van as a Defendant is granted.
4.
Erin Nolm and Raquel Lightner
Mr. Brown also seeks to add an Eighth Amendment “failure to act” claim against Nolm
and Lightner, alleging that they failed to prevent Mr. Brown’s constitutional rights from being
violated by Defendant Tuttle’s medical treatment and false allegation of sexual abuse. See
Proposed Am. Compl. at Legal Claims, Count Twenty-One, ECF No. 81-1. To allege a plausible
claim that a supervisor failed to prevent a constitutional violation, Mr. Brown must plead that the
defendant either: (1) actually participated in the violation, (2) failed to remedy a wrong after
being informed through a report or appeal, (3) created a policy or custom that sanctioned conduct
that constituted a constitutional violation (or allowed such a policy or custom to continue), (4)
was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) failed
to act on information indicating that unconstitutional acts were occurring. Cf. Alvarado v.
Westchester Cnty., 22 F.Supp.3d 208, 215 (S.D.N.Y. 2014) (citing Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995)); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“Personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.”) (citation and internal quotation marks omitted).
Mr. Brown fails to state this claim plausibly, because he does not explain what precisely
he told Lighter or Nolm and does not indicate that either individual was a supervisor in a position
to help him. See Gillard v. Rovelli, No. 9:09-CV-0860 (NAM/GHL), 2010 WL 4905240, at *
12-13 (N.D.N.Y. Sept. 29, 2010) (“A prisoner’s allegation that a supervisory official failed to
respond to a grievance is insufficient to establish that the official failed to remedy that violation
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after learning of it through a report or appeal or exhibited deliberate indifference… by failing to
act on information indicating that the violation was occurring.”) (citation and internal quotation
marks omitted) (alteration in original), adopted by the District Court, 2010 WL 4945770
(N.D.N.Y. Nov. 24, 2010); Greene v. Mazzuca, 485 F. Supp.2d 447, 452 (S.D.N.Y. 2007)
(dismissing claims against several defendants because the mere allegation that they were
informed of defendant’s belief that his constitutional rights were violated was insufficient to
show knowledge of personal participation in a violation). Moreover, the only allegations Mr.
Brown makes against Erin Nolm indicate that she helped him a great deal, arranging for him to
see another dentist and confronting Defendant Tuttle. Without more, the Court must dismiss
Count Twenty-One and deny Mr. Brown’s request to add Erin Nolm and Raquel Lightner as
Defendants.
C.
Defendant Tuttle and Previously Dismissed Claims
As determined in its prior Order, the Court will allow Counts Eight, Nine, Twelve,
Thirteen, Fourteen, and Sixteen, stating the deliberate indifference claim, to proceed. See Order,
ECF No. 27. Mr. Brown seeks to add new claims against Defendant Tuttle and to resurrect First
Amendment and Fourteenth Amendment claims that were dismissed by the Court in 2013. As
indicated above, the Court will permit Mr. Brown to add a retaliation claim against Defendant
Tuttle but denies his request to add a “failure to protect” claim and to resurrect old claims.
Mr. Brown seeks to add a “failure to protect” claim against Defendant Tuttle. See
Proposed Am. Compl. at Counts Ten and Eleven, ECF No. 81-1. “An Eighth Amendment
failure to protect claim requires an inmate to show that prison officials acted with deliberate
indifference in failing to protect the inmate from harm.” Bridgewater v. Taylor, 698 F.Supp.2d
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351, 357 (S.D.N.Y. 2010) (citation and internal quotation marks omitted). To state a plausible
failure to protect claim, Mr. Brown must allege that the deprivation caused was “sufficiently
serious” and that the prison official acted with a sufficiently culpable state of mind akin to
recklessness. Id. at 357-58 (“the prison official must have know[n] of and disregard[ed] an
excessive risk to inmate health or safety”) (citation and internal quotation marks omitted)
(alterations in original). The allegations that Defendant Tuttle’s false accusation of inappropriate
touching caused Mr. Brown to suffer harm while he was in the segregation unit do not state a
failure to protect claim. The conditions that Mr. Brown experienced in the segregation unit were
not caused by Defendant Tuttle, nor could she have known that he would experience those
conditions. See id. at 358 (dismissing a failure to protect claim because plaintiff did not plead
sufficient facts to establish the defendant’s actual knowledge that the plaintiff would likely be
harmed); Johnson v. Lantz, No. 3:04CV903CFD, 2005 WL 3448055, at *5-6 (D. Conn. Dec. 8,
2005) (same). Thus, the Court denies Plaintiff leave to add a failure to protect claim against
Defendant Tuttle.
Mr. Brown attempts to resurrect the so-called First Amendment claim asserted in the
Complaint that the Court dismissed in 2013. See Proposed Am. Compl. at Count Two, ECF No
81-1. That claim related to the false accusation of sexual assault by Defendant Tuttle. As the
Court indicated previously, the plaintiff has no right not to be falsely accused. Freeman v.
Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (“The prison inmate has no constitutionally
guaranteed immunity from being falsely or wrongly accused of conduct which may result in the
deprivation of a protected liberty interest"), cert. denied, 485 U.S. 982 (1988). In addition, Mr.
Brown may not re-assert the claim that Defendant Tuttle accused him of sexual assault in an
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effort to prevent him from filing grievances. That allegation does not state a claim of retaliation
because the alleged retaliatory conduct occurred before the exercise of the Mr. Brown’s First
Amendment rights. See McAllister v. Queens Borough Public Library, 309 F. App’x 457, 459
(2d Cir. 2009) (affirming dismissal of a retaliation claim because the “adverse action” occurred
before the protected activity or speech). Thus, the only claim that the Court will permit Mr.
Brown to add against Defendant Tuttle is the retaliation claim related to her involvement in the
decision to submit a separation profile because of his complaints and grievances against her
which allegedly resulted in him being transferred to another facility.
Conclusion
The Motion for Summary Judgment [ECF No. 62] is DENIED without prejudice. The
Motion for Leave to File an Amended Complaint [ECF No. 81] is GRANTED as to the request
to add Captain Van as a Defendant as well as to add the First Amendment retaliation claim
against Defendants Tuttle and Captain Van regarding their involvement in the decision to submit
a separation profile and have the Plaintiff transferred to another facility because of his
complaints and grievances against Defendant Tuttle. The Motion for Leave to File an Amended
Complaint [ECF No. 81] is DENIED as to the request to add as Defendants Raquel Lightner,
Lisa Candelario, Arlaina Duffy, Erin Nolm and Nurse/Medical Grievance Coordinator Steven
Swan as well as any claims against them and is also DENIED as to the request to add any other
claims against Defendant Tuttle. The Clerk should NOT docket the amended complaint
attached to the Plaintiff’s motion.
Within THIRTY DAYS of the date of this order, Mr. Brown is directed to file an
amended complaint that complies with this ruling. Thus, the amended complaint should only
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include Dr. Joann Tuttle and Captain Van as Defendants in their individual capacities. In
addition, the only claims that are permitted to be included are: the Eighth Amendment deliberate
indifference to medical/dental needs claim against Defendant Tuttle regarding the dental
treatment provided on July 25, 2013, the First Amendment retaliation claim against Defendant
Tuttle regarding her involvement in the decision to submit a separation profile and have the
Plaintiff transferred to another facility because of his complaints and grievances against her, and
the First Amendment retaliation claim against Captain Van regarding his involvement in the
decision to have Defendant Tuttle submit a separation profile and have the Plaintiff transferred to
another facility because of the Plaintiff’s complaints and grievances against Defendant Tuttle.
For Plaintiff’s reference, those claims are set forth in Counts One, Three, Eight, Nine, Twelve,
Thirteen, Fourteen and Sixteen of the Proposed Amended Complaint, ECF No. 81-1. The Clerk
shall send the Plaintiff a copy of the Proposed Amended Complaint attached to the Motion
to Amend with a copy of this ruling.
If the Plaintiff chooses not to file an amended complaint that complies with this
order, the case will proceed only as the Eighth Amendment claim of deliberate indifference
to medical/dental needs against Defendant Tuttle as set forth in the initial Complaint, ECF
No. 1, and addressed in the Recommended Ruling, ECF No. 8.
SO ORDERED this 24th day of June, 2015, at Bridgeport, Connecticut.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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