Morgan, Jr. v. Dzurenda, et al

Filing 53

ORDER granting in part and denying in part 38 Motion to Dismiss. Signed by Judge Victor A. Bolden on 9/29/2015. (Shin, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LLOYD GEORGE MORGAN, JR.,
Plaintiff,
v.

CASE NO. 3:14-cv-966 (VAB)

COMMISSIONER DZURENDA, ET AL.,
Defendants.

RULING ON DEFENDANTS’ MOTION TO DISMISS
Plaintiff, Lloyd George Morgan, Jr., is currently confined at the Corrigan-Radgowski
Correctional Institution in Uncasville, Connecticut. He brings this civil rights action pro se
pursuant to 28 U.S.C. § 1915 against Commissioner James E. Dzurenda, Warden/Deputy
Commissioner Scott S. Semple, District Administrator Angel Quiros, Director of Offender
Classification Karl Lewis, Wardens Carol Chapdelaine, Edward Maldonado, and Christine M.
Whidden, Deputy Wardens Gary Wright and Sandra Barone, Captains McCormick and K.
Godding, Unit Managers Manning and Jean Ott, Lieutenant Lizon, and Correctional Officers
Maldonado, Lindsey, Clayton, Torres, Gonzalez, Leiper, and Ulm.
Pending before the Court is the defendants’ motion to dismiss. For the reasons set forth
below, the motion is GRANTED in part and DENIED in part, as follows:
(1) the motion to dismiss is GRANTED as to the January 2014 failure to protect claim
against Correctional Officers Gonzalez, Torres, Ulm, Leiper, and Clayton, Lieutenant
Lizon, Deputy Wardens Wright and Barone, Wardens Maldonado and Whidden, Unit
Managers Manning and Ott, Warden/Deputy Commissioner Semple, Commissioner
Dzurenda, Director of Offender Classification Lewis, and District Administrator Quiros;
(2) the motion to dismiss is GRANTED as to the general claims of retaliation against
Lieutenant Lizon, Administrator Quiros, Deputy Wardens Wright and Barone, Director
Lewis, Warden/Deputy Commissioner Semple, and Commissioner Dzurenda;
(3)

the motion to dismiss is GRANTED as to the state law negligence claims against
1

all defendants in their individual and official capacities;
(4) the motion to dismiss is DENIED as to the January 2014 failure to protect claim
against Captain Godding and McCormick, Warden Chapdelaine, and Correctional
Officers Lindsey and Maldonado;
(5)

the motion to dismiss is GRANTED as to the request for declaratory relief;

(6) the motion to dismiss is DENIED as to the claim that Correctional Officers
Gonzalez, Torres, Ulm, Leiper, and Clayton were deliberately indifferent to the plaintiff’s
safety when they called him a snitch in front of other inmates;
(7) the motion to dismiss is DENIED as to the claim that Lieutenant Lizon, Deputy
Wardens Wright and Barone, Warden Maldonado, Unit Managers Manning and Ott,
Commissioner Dzurenda, Warden/Deputy Commissioner Semple, Director Lewis, and
Administrator Quiros failed to take any action to protect the plaintiff from potential harm
as a result of the conduct of defendant correctional officers Gonzalez, Torres, Ulm,
Leiper, and Clayton;
(8) the motion to dismiss is DENIED as to the specific claims of retaliation against
Wardens Whidden and Maldonado;
(9) the motion to dismiss is DENIED as to the requests for punitive and compensatory
damages;
(10) the motion to dismiss is DENIED on the ground of qualified immunity and on the
ground of lack of personal involvement; and
(11) the request for injunctive relief is DISMISSED sua sponte as barred by the
Eleventh Amendment.
I.

Procedural History
On November 21, 2014, the Court dismissed the Fifth, Sixth, and Fourteenth Amendment

claims and the ADA claims against all defendants and the prison transfer claims against
Warden/Deputy Commissioner Semple and Director of Offender Classification Lewis pursuant
to 28 U.S.C. § 1915A(b)(1). The Court also dismissed the claims against all defendants for
monetary damages in their official capacities pursuant to 28 U.S.C. § 1915A(b)(2). The Court
concluded that the Eighth Amendment claims of failure to protect and deliberate indifference to
safety, the First Amendment retaliation claims and the state law claims of negligence and
intentional infliction of emotional distress would proceed against defendants Dzurenda, Semple,
2

Quiros, Lewis, Chapdelaine, Warden Maldonado, Whidden, Wright, Barone, McCormick,
Godding, Manning, Ott, Lizon, Officer Maldonado, Lindsey, Clayton, Torres, Gonzalez, Leiper
and Ulm in their individual capacities and official capacities, to the extent that the plaintiff seeks
declaratory and injunctive relief.
On February 17, 2015, the defendants brought this motion to dismiss under Fed. R. Civ.
P. 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and for failure to state a claim
upon which relief can be granted.
II.

Factual Allegations
The following relevant facts are alleged by the plaintiff, Mr. Morgan. For purposes of

evaluating a motion to dismiss, the Court must proceed “on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007).
In August 2012, Mr. Morgan was incarcerated at Garner Correctional Institution
(“Garner”). In mid-August 2012, he sent a letter to Commissioners Arnone and Dzurenda asking
that he not be transferred to the Osborn Correctional Institution (“Osborn”) because he had been
assaulted at Osborn on two occasions in the late 1980s and early 1990s. In July 2013, Warden
Semple and Director of Population Management Lewis issued an order that Mr. Morgan be
transferred to Carl Robinson Correctional Institution (“Carl Robinson”).
During his confinement at Carl Robinson from July to November 2013, Mr. Morgan
complained to Warden Whidden about other inmates at Carl Robinson who were gang members
and who had threatened to harm him. He requested that he be placed in protective custody.
Warden Whidden allegedly denied the plaintiff’s requests to be placed in protective custody in
retaliation for prior lawsuits and grievances filed by the plaintiff against her. District

3

Administrator Quiros allegedly upheld Warden Whidden’s decisions to deny the requests for
plaintiff’s placement in protective custody.
In October 2013, in response to a written letter from Mr. Morgan claiming that he feared
for his safety, a lieutenant placed the plaintiff under observation in a restrictive housing cell. On
November 8, 2013, defendants Whidden and Quiros transferred the plaintiff to Osborn, despite
their knowledge of his having been the victim of several assaults at Osborn in the late 1980s and
early 1990s.
Upon his admission to Osborn, prison officials placed Mr. Morgan in a unit known for
housing gang members. From November 14, 2013 to January 4, 2014, he complained to Unit
Manager Godding, Warden Chapdelaine, and Captain McCormick verbally and in writing about
harassment and threats issued by gang members at Osborn. Mr. Morgan specifically complained
about an inmate named Rodriguez, who lived in his housing unit and was a member of the Los
Solidos gang.
On January 5, 2014, he informed Correctional Officers Lindsey and Maldonado that
Inmate Rodriguez, who was a member of the Los Solidos gang, had threatened to harm him and
that he feared for his safety. Later that day, Inmate Rodriguez assaulted Mr. Morgan in the
shower. Prison officials investigated the incident and issued Inmate Rodriguez a disciplinary
report for assault.
Later in January 2014, the plaintiff requested that he be placed in protective custody. A
correctional counselor recommended that the plaintiff’s request be granted. In February 2014,
Warden Maldonado, District Administrator Quiros, Director of Population Management Lewis,
Deputy Commissioner Semple, Commissioner Dzurenda, and Deputy Warden Barone denied the
plaintiff’s request to be placed in protective custody.

4

Correctional Officers Gonzalez, Torres, Ulm, Leiper, and Clayton and Lieutenant Lizon
allegedly called plaintiff a snitch in front of other inmates. Commissioner Dzurenda,
Warden/Deputy Commissioner Semple, District Administrator Quiros, Director of Offender
Classification Lewis, Warden Maldonado, Deputy Wardens Wright and Barone, Unit Managers
Manning and Ott, and Lieutenant Lizon failed to take any action to protect him from potential
harm as a result of the conduct of defendants Gonzalez, Torres, Ulm, Leiper, and Clayton.
In May 2014, Mr. Morgan sent multiple requests to Deputy Warden Wright seeking an
investigation into gang activity and his placement in the special needs unit, but Deputy Warden
Wright determined that he did not meet the criteria for special needs placement and ignored the
plaintiff’s allegations that he feared for his safety, due to threats by gang member inmates at
Osborn.
III.

Standard of Review
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of proving, by a
preponderance of evidence, that the Court has subject matter jurisdiction. See id.
In reviewing a motion to dismiss under Rule 12(b)(1), “‘the court must take all facts
alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.’”
Natural Resources Defense Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting Sweet
v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000)). When the existence of subject matter jurisdiction is
challenged, the Court may properly consider evidence outside of the pleadings submitted on this
issue to determine whether subject matter jurisdiction exists. See State Employees Bargaining
Agent Coalition v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).

5

When considering a motion to dismiss under Rule 12(b)(6), 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); Harris v. Mills, 572
F.3d 66, 71 (2d Cir. 2009). In its review of the complaint, the Court applies a “plausibility
standard,’” which is guided by “[t]wo 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, 572 F.3d at 72 (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).
Courts should recognize that the plausibility standard “does not impose a probability
requirement at the pleading stage, it simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence” supporting plaintiff’s claim for relief. Bell
Atlantic v. Twombly, 550 U.S. 544, 556 (2007). Furthermore, even under this standard, the Court
liberally construes a pro se complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In ruling
on a motion to dismiss under Rule 12(b)(6), the Court may only consider the facts alleged in the
complaint, documents attached as exhibits to the complaint or incorporated by reference in the
complaint, and “matters of which judicial notice may be taken.” Samuels v. Air Transport Local
504, 992 F.2d 12, 15 (2d Cir. 1993).
IV.

Discussion
Defendants assert seven arguments in support of their motion to dismiss. They argue

6

that: (1) there are insufficient facts to support a failure to protect claim/deliberate indifference to
safety claim against any of the defendants; (2) the facts fail to state a claim for retaliation against
any defendant; (3) there are no facts to show the personal involvement of supervisory defendants
Dzurenda, Semple, Quiros, Wright, Barone, Whidden, Lewis, Chapdelaine, and Warden
Maldonado in the alleged constitutional violations; (4) the negligence claims are barred by
statutory and sovereign immunity; (5) the Court lacks subject matter jurisdiction over the
requests for injunctive and declaratory relief as well as punitive damages; (6) the request for
compensatory damages is barred by 42 U.S.C. § 1997e(e); and (7) they are entitled to qualified
immunity.
A.

Failure to Protect Claim

The Complaint includes two failure to protect claims. Plaintiff alleges that during his
confinement at Osborn from November 14, 2013 to January 4, 2014, he complained to Unit
Manager Godding, Warden Chapdelaine, and Captain McCormick verbally and in writing about
harassment and threats issued by inmates who were members of the Bloods and Los Solidos
gangs at Osborn. In particular, he mentioned an Inmate Rodriguez, who lived in his housing unit
and had threatened to hurt him. On January 5, 2014, the plaintiff informed Correctional Officers
Lindsey and Maldonado that an inmate in his housing unit, who was a Los Solidos gang member,
had threatened to harm him and he feared for his safety. Later that day, the inmate that the
plaintiff had complained about assaulted him in the shower.
Plaintiff also alleges that during his confinement at Osborn from January 2014 to May
2014, Correctional Officers Gonzalez, Torres, Ulm, Leiper, and Clayton called him a snitch in
front of other inmates. Mr. Morgan claims that he made defendants Lizon, Wright, Warden
Maldonado, Manning, Barone, Dzurenda, Semple, Lewis, and Quiros aware of the conduct of

7

defendants Gonzalez, Torres, Ulm, and Lieper, but they failed to grant his requests for protective
custody or special needs management or take any other action to protect him from potential
harm.
The Eighth Amendment imposes a duty on prison officials “to take reasonable measures
to guarantee the safety of inmates in their custody.” Hayes v. New York City Dep’t of
Corrections, 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832-33
(1994)). Thus, “[a] prison official’s deliberate indifference to a substantial risk of serious harm
to an inmate violates the Eighth Amendment” and will give rise to a failure to protect claim.
Farmer, 511 U.S. at 828 (internal quotation marks and citations omitted).
1.

January 2014 Assault

Counsel for the defendants argues that the plaintiff has failed to allege that he made
defendants Godding, Chapdelaine, McCormick, Lindsey, and Correctional Officer Maldonado
aware of the possibility that he might be harmed by Inmate Rodriguez prior to the assault. The
plaintiff has alleged plausibly that, during the month prior to the assault by Inmate Rodriguez at
Osborn, he made defendants Godding, Chapdelaine, and McCormick aware that he might be
harmed by an inmate named Gabriel Rodriguez, who was a member of the Los Solidos gang, and
on the day of the assault informed defendants Lindsey and Correctional Officer Maldonado that
he feared that Inmate Rodriguez might hurt him. The plaintiff claims that none of these
defendants took any action to protect him from the assault by Inmate Rodriguez despite his
attempts to warn them that he was in danger. Thus, the motion to dismiss is denied as to
defendants Godding, Chapdelaine, McCormick, Lindsey, and Correctional Officer Maldonado
regarding the claim that they failed to protect him from assault by Inmate Rodriguez.
Defendants also argue that the plaintiff has failed to allege sufficiently that defendants

8

Gonzalez, Torres, Lizon, Ulm, Leiper, Clayton, Wright, Warden Maldonado, Whidden,
Manning, Barone, Ott, Dzurenda, Semple, Lewis, and Quiros were involved in or aware of the
potential harm to the plaintiff from Inmate Rodriguez prior to the assault in the shower at
Osborn. There are no allegations that defendants Gonzalez, Torres, Lizon, Ulm, Leiper, Clayton,
Wright, Warden Maldonado, Whidden, Manning, Barone, Ott, Dzurenda, Semple, Lewis, and
Quiros were aware of the potential harm to the plaintiff in January 2014 and failed to take
measures to protect him from that harm.
Although the plaintiff claims that he sent letters to defendants Dzurenda and Semple in
2012 regarding prior incidents involving assaults on him by other inmates in 1996 at Osborn,
these letters would not have put them on notice that the plaintiff might be in danger of assault at
Osborn over a year later. See Coronado v. Goord, No. 99-cv-1674, 2000 WL 1372834, at *5,
2000 U.S. Dist. LEXIS 13876, at *14 (S.D.N.Y. Sept. 25, 2000) (holding knowledge of attacks
on prisoner approximately ten years earlier insufficient to prove defendants knew he was at risk
because “[t]he significant amount of time that has passed since these prior attack lessens the
imminence of the threat of their being repeated”). The plaintiff has failed to state a claim of
failure to protect against defendants Gonzalez, Torres, Lizon, Ulm, Leiper, Clayton, Wright,
Warden Maldonado, Whidden, Manning, Barone, Ott, Dzurenda, Semple, Lewis, or Quiros
regarding the assault by Inmate Rodriguez on January 5, 2014. Accordingly, the motion to
dismiss is granted as to January 2014 failure to protect claim against defendants Gonzalez,
Torres, Lizon, Ulm, Leiper, Clayton, Wright, Warden Maldonado, Whidden, Manning, Barone,
Ott, Dzurenda, Semple, Lewis, and Quiros.
2.

Labeling the Plaintiff a Snitch

Counsel for the defendants contends that the plaintiff has not alleged that any of the

9

defendants called him a snitch in front of Inmate Rodriguez prior to the assault on January 5,
2014. This argument is misplaced. The claim that defendants Gonzalez, Torres, Ulm, Leiper
and Clayton called him a snitch on multiple occasions in front of other inmates is a separate
claim from the alleged failure to protect claim involving the assault by Inmate Rodriguez on
January 5, 2014.
Defendants acknowledge that an allegation that a correctional officer called an inmate a
snitch in front of other inmates may pose a threat to that inmate’s health and safety. Plaintiff has
alleged with sufficient specificity that defendants Gonzalez, Torres, Ulm, Leiper, and Clayton
called him a snitch in front of other inmates at various times between January and May 2014.
Plaintiff also has alleged that he informed defendants Lizon, Wright, Warden Maldonado,
Manning, Ott, Barone, Dzurenda, Semple, Lewis, and Quiros of this conduct and sought to be
placed in protective custody or on special management status, but these defendants denied the
requests and ignored his concerns for his safety. The plaintiff has stated plausible claims that
other inmates had called him a snitch in front of other inmates and that defendants failed to take
any action to protect him from potential harm. Thus, the motion to dismiss is denied as to the
claims that defendants Gonzalez, Torres, Ulm, Leiper, and Clayton were deliberately indifferent
to his safety when they called him a snitch in front of other inmates and defendants Lizon,
Wright, Warden Maldonado, Manning, Ott, Barone, Dzurenda, Semple, Lewis, and Quiros failed
to take any action to protect him from potential harm as a result of the conduct of defendants
Gonzalez, Torres, Ulm, Leiper, and Clayton.
B.

Retaliation Claim

Plaintiff claims that defendants Whidden and Quiros denied his request to be placed in
protective custody at Carl Robinson and then transferred him to Osborn in retaliation for

10

grievances and lawsuits filed by him against defendant Whidden. Plaintiff also alleges that
defendant Warden Maldonado denied his request to be placed in protective custody after the
assault by Inmate Rodriguez because of past lawsuits filed by him against defendant Warden
Maldonado.
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 Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 2003). To state a retaliation claim,
the plaintiff must show that his conduct was protected by the Constitution or federal law and that
this protected conduct was a “substantial or motivating factor” in the alleged retaliatory action by
prison officials. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003). “‘Only retaliatory action
that would deter a similarly situated individual or ordinary firmness from exercising his or her
constitutional rights constitutes adverse action for a claim of retaliation.’” Davis v. Goord, 320
F.3d 346, 353 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001)).
Plaintiff includes specific allegations that defendant Whidden verbally informed him that
she thought he was difficult and that she would deny his request for protective custody because
he had filed grievances and complaints against her. Plaintiff also asserted that defendant Warden
Maldonado had a personal vendetta against him and that he informed him that he would deny his
request for protective custody because plaintiff had filed grievances against him and had sued
him in the past. Plaintiff’s specific allegations that defendant Whidden denied his request to be
placed in protective custody at Carl Robinson and transferred him to Osborn because of prior
grievances and lawsuits filed by him against defendant Whidden, as well as the specific claim
that defendant Warden Maldonado denied his request to be placed in protective custody at
Osborn because of prior grievances or lawsuits filed by him against defendant Warden

11

Maldonado, state plausible claims of retaliation. The general claims that defendant Quiros
agreed with the recommendation of defendant Whidden that the plaintiff’s request for protective
custody be denied and that he be transferred to Osborn and that he agreed with the
recommendation of defendant Maldonado that plaintiff’s request for protective custody be
denied are conclusory and do not state claims for retaliation.
Plaintiff also alleges that the refusal of defendants Lizon, Wright, Barone, Lewis,
Semple, Quiros, and Dzurenda to take action in response to his complaints about being called a
snitch as well as the denial of his requests to be placed in protective custody constituted
retaliation. These allegations are conclusory and are not supported by any facts to suggest that
the conduct of these defendants was taken in retaliation for the exercise of the plaintiff’s
constitutional rights. Thus, the motion to dismiss is granted as to the general claims of retaliation
against defendants Quiros, Lizon, Wright, Barone, Lewis, Semple, and Dzurenda and denied as
to the specific claims of retaliation against defendants Whidden and Warden Maldonado.
C.

Personal Involvement

Defendants contend that the plaintiff has failed to allege the personal involvement of the
supervisory defendants in any constitutional violations. To recover money damages under
section 1983, plaintiff must show that these defendants were personally involved in the
constitutional violations. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Supervisory
officials cannot be held liable under section 1983 solely for the acts of their subordinates. See
Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).
Plaintiff may show personal involvement through evidence of one or more of the
following: (1) that the defendant actually and directly participated in the alleged unconstitutional
12

acts; (2) that the defendant failed to remedy a wrong after being informed of the wrong through a
report or appeal; (3) that the defendant created or approved a policy or custom that sanctioned
objectionable conduct which rose to the level of a constitutional violation or allowed such a
policy or custom to continue; (4) that the defendant was grossly negligent in supervising the
correctional officers who committed the constitutional violation; or (5) that the defendant failed
to take action in response to information regarding the occurrence of unconstitutional conduct.
See Colon, 58 F.3d at 873. In addition, the plaintiff must demonstrate an affirmative causal link
between the inaction of the supervisory official and his injury. See Poe v. Leonard, 282 F.3d
123, 140 (2d Cir. 2002).
In Ashcroft v. Iqbal, the Supreme Court found that a supervisor can be held liable only
“through the official’s own individual actions.” 556 U.S. 662, 676 (2009). This decision
arguably casts doubt on the continued viability of some of the categories for supervisory liability.
The Second Circuit, however, has not revisited the criteria for supervisory liability following
Iqbal. See Rispardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014) (“We have not yet determined
the contours of the supervisory liability test . . . after Iqbal.”); Grullon v. City of New Haven, 720
F.3d 133, 139 (2d Cir. 2013) (noting that decision in Iqbal “may have heightened the
requirements for showing a supervisor’s personal involvement with respect to certain
constitutional violations,” but finding it unnecessary to reach the impact of Iqbal on the personal
involvement requirements set forth in Colon). Because it is unclear as to whether Iqbal overrules
or limits Colon, the Court will continue to apply the categories for supervisory liability set forth
by the Second Circuit.
Defendants first contend that plaintiff has failed to allege that they have violated his
13

constitutional rights. Without discussion, defendants then argue that, even if the plaintiff had
alleged sufficient facts to state a claim that they had violated his constitutional rights, none of the
supervisory defendants, namely Commissioner James E. Dzurenda, Warden/Deputy
Commissioner Scott S. Semple, District Administrator Angel Quiros, Director of Offender
Classification Karl Lewis, Wardens Carol Chapdelaine, Edward Maldonado, and Christine M.
Whidden, and Deputy Wardens Gary Wright and Sandra Barone, were directly involved in or
had actual knowledge of the constitutional violations of the plaintiff’s rights.
The Court has addressed the plaintiff’s allegations in prior sections of this ruling and has
found that the plaintiff has stated plausible claims that defendants Godding, Chapdelaine,
McCormick, Lindsey, and Correctional Officer Maldonado failed to protect him from assault by
Inmate Rodriguez, that defendants Gonzalez, Torres, Ulm, Leiper, and Clayton were deliberately
indifferent to his safety when they called him a snitch in front of other inmates, that defendants
Lizon, Wright, Warden Maldonado, Manning, Barone, Dzurenda, Semple, Lewis, and Quiros
failed to take any action to protect him from potential harm as a result of the conduct of
defendants Gonzalez, Torres, Ulm, Leiper, and Clayton, and that defendants Whidden and
Warden Maldonado retaliated against the plaintiff for filing grievances and complaints against
them. Thus, the plaintiff has sufficiently alleged the involvement of the above defendants in
these claims. The motion to dismiss is denied on the ground of lack of personal involvement in
the constitutional violations of the plaintiff’s rights.
D.

Qualified Immunity

Defendants argue that they are entitled to qualified immunity. Defendants have the
burden of proving the affirmative defense of qualified immunity. See Vincent v. Yelich, 718 F.3d
14

157, 166 (2d Cir. 2013).
Qualified immunity “protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v, Fitzgerald, 457 U.S. 800, 818 (1982)). An official is entitled to qualified
immunity if (1) the facts alleged or shown by the plaintiff state a violation of a statutory or
constitutional right by the official and (2) the right was clearly established at the time of the
challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2080 (2011)
(citation omitted). The Supreme Court has held that district courts have the discretion to choose
which of the two prongs of the qualified immunity standard to decide first in view of the
particular circumstances surrounding the case to be decided. See Pearson, 555 U.S. at 236.
Under the second prong, a right is clearly established if, “at the time of the challenged
conduct . . . every ‘reasonable official would have understood that what he is doing violates that
right.’” al-Kidd, 563 U.S. at ___, 131 S. Ct. at 2083 (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). There is no requirement that a case have been decided which is directly on
point, “but existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. “[A] broad general proposition” does not constitute a clearly established right.
Reichle v. Howards, ___ U.S. ___, 132 S. Ct. 2088, 2094 (2012). Rather, the constitutional right
allegedly violated must be established “in a ‘particularized’ sense so that the ‘contours’ of the
right are clear to a reasonable official.” Id. (quoting Anderson, 483 U.S. at 640).
Without discussion, defendants simply contend that in light of the state of the law, it was
impossible for them to have known that they violated clearly established rights of the plaintiff
15

when they transferred him to Osborn and denied his request for protective custody. To the extent
that defendants are addressing the retaliation claims raised by the plaintiff, it was clearly
established at least as early as 1988 that subjecting a prisoner to adverse action in retaliation for
filing grievances constituted unconstitutional conduct. See Franco v. Kelly, 854 F.2d 584, 58990 (2d Cir. 1988). If defendants denied the plaintiff’s requests for protective custody status and
transferred him to Osborn in retaliation for his filing of grievances and lawsuits against them, it
would not have been reasonable for them to believe that their conduct did not violate the
plaintiff’s rights.
Defendants have not met their burden on either prong of the qualified immunity standard.
Accordingly, the motion to dismiss is denied on the ground that the defendants are entitled to
qualified immunity as to plaintiff’s claims.
E.

Negligence Claim

Plaintiff asserts state law claims of negligence and intentional infliction of emotional
distress. Defendants contend that the claim of negligence, only,1 is barred by the doctrines of
statutory and sovereign immunity. Plaintiff does not address this argument.
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 or
her duties or within the scope of his or her employment.” Thus, state employees are not
“personally liable for their negligent actions performed within the scope of their employment.”
Miller v. Egan, 265 Conn. 301, 319 (2003). Furthermore, “[a]ny person having a complaint for
such damage or injury” must “present . . . [the] claim against the state” to the State Claims

16

Commissioner who may authorize suit against the state or state official. Conn. Gen. Stat. §§ 4160, 4-165(a). When filing a lawsuit, the plaintiff must allege that he or she sought
“authorization and the date on which it was granted.” Conn. Gen. Stat. § 4-160(c).
Plaintiff has alleged that some of the defendants acted negligently in failing to protect
him from assault by another inmate. Plaintiff has not asserted that he filed a claim with the State
Claims Commissioner or that he received the required authorization to file suit against the State
and its officials. Accordingly, the negligence claims against the defendants in their individual
capacities are barred by statutory immunity under Conn. Gen. Stat. § 4-165. The motion to
dismiss is granted on this ground.
“The doctrine of sovereign immunity protects state officials and employees from lawsuits
resulting from the performance of their duty.” Hultman v. Blumenthal, 67 Conn. App. 613, 620
(2002). This immunity is applicable to both lawsuits against a state as well as to lawsuits against
a state official in his or her official capacity. See Miller, 265 Conn. at 313 (“a suit against a state
officer concerning a matter in which the officer represents the state is, in effect, against the
state”) (internal quotation marks and citation omitted). There is no allegation that the defendants
in their official capacities waived their sovereign immunity to be sued as to any negligence
claims. Accordingly, the motion to dismiss the claims of negligence against the defendants in
their official capacities is granted because those claims are barred by sovereign immunity.
F.

Claims for Declaratory and Injunctive Relief

Defendants seek dismissal of plaintiff’s requests for injunctive and declaratory relief on
the ground that the court lacks subject matter jurisdiction over the requests. Plaintiff does not
1

The state law claim for intentional infliction of emotional distress thus remains.
17

seek specific injunctive relief, but simply states that he seeks an injunction against defendants in
their official capacities. Plaintiff also seeks declaratory relief in the form of a request that the
Court find that defendants’ conduct violated his constitutional rights.
Defendants argue that the request for declaratory relief should be dismissed because it is
retrospective instead of prospective, and the Court agrees. In addition, defendants contend that
plaintiff’s request for injunctive relief should be dismissed as moot because he is no longer
incarcerated in any of the three facilities at which the alleged unconstitutional conditions
occurred; however, the Court concludes that the request for injunctive relief is more
appropriately dismissed, like the request for declaratory relief, on the ground that it is not
prospective in nature.
In Ex Parte Young, the Supreme Court held that an exception to the Eleventh
Amendment’s grant of sovereign immunity from suit existed to permit a plaintiff to sue a state
official acting in his or her official capacity for prospective injunctive relief for continuing
violations of federal law. 209 U.S. 123, 155-56 (1908). This exception to Eleventh Amendment
immunity does not apply to claims against state officials seeking declaratory or injunctive relief
for prior violations of federal law. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993) (the Eleventh Amendment “does not permit judgments
against state officers declaring that they violated federal law in the past”); Green v. Mansour,
474 U.S. 64, 68 (1985) (“We have refused to extend the reasoning of Young . . . to claims for
retrospective relief”); In re Deposit Ins. Agency, 482 F. 3d 612, 618 (2d Cir. 2007) (plaintiff may
proceed against state officers in official capacities only if “complaint (a) alleges an ongoing
violation of federal law and (b) seeks relief properly characterized as prospective”) (internal
18

quotation marks and citations omitted); Ward v. Thomas, 207 F.3d 114, 119-20 (2d Cir. 2000)
(Eleventh Amendment bars retrospective relief in form of declaration that State of Connecticut
violated federal law in the past).
Plaintiff’s request for unspecified injunctive relief and request for a declaration that
defendants violated his constitutional rights in the past cannot be properly characterized as
“prospective” because plaintiff does not allege how such relief would remedy a future
constitutional violation against him by defendants. Thus, plaintiff’s requests for declaratory and
injunctive relief do not meet the exception to Eleventh Amendment immunity set forth in Ex
Parte Young. See Thomas v. Connecticut Dep’t of Correction, No. 3:14-cv-714, 2015 WL
3970833, at *5, 2015 U.S. Dist. LEXIS 84543, at *13-14 (D. Conn. June 30, 2015) (granting
motion to dismiss claim seeking “such further and equitable relief as the Court may deem
appropriate” on ground that request did not “properly invoke the Ex Parte Young exception to
Eleventh Amendment immunity”); Jackson v. Battaglia, 63 F. Supp. 3d 214, 220-21 (N.D.N.Y.
2014) (dismissing requests for relief seeking an “injunction precluding any unlawful conduct
alleged within this complaint at any time in the future and a declaration that defendants have
violated federal law” because they “cannot be properly characterized as prospective” requests for
relief) (internal quotation marks omitted).
Because neither the injunctive relief nor the declaratory relief sought in the complaint is
prospective in nature, those requests for relief are barred by the Eleventh Amendment and must
be dismissed. The motion to dismiss is granted as to the request for declaratory relief on the
ground that it is barred by the Eleventh Amendment. The request for injunctive relief is
dismissed sua sponte on the ground that it is barred by the Eleventh Amendment. See Atlantic
19

Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) (Eleventh Amendment may be
raised sua sponte because it affects the court’s subject matter jurisdiction), cert. denied, 510 U.S.
1043 (1994).
G.

Claim for Punitive Damages

Defendants first argue that 18 U.S.C. § 3626(a)(1), which provides that prospective relief
in civil actions concerning prison conditions extend no further than necessary to correct the
violation of the Federal right of the particular plaintiffs, precludes any award for punitive
damages. In support of this argument, defendants rely on a single case from the United States
District Court for the Western District of Pennsylvania. See Margo v. Bedford County, No. 3:04cv-147, 2008 WL 857507, 2008 U.S. Dist. LEXIS 25625 (W.D. Pa. Mar. 31, 2008). The Court
declines to follow this decision, and agrees with later case law that 18 U.S.C. § 3626(g)(7),
which defines the term “prospective relief” as “all relief other than compensatory monetary
damages,” did not intend to preclude an award of punitive damages in all prisoner litigation. See
Douglas v. Byunghak Jin, No. 11-cv-350, 2014 WL 1117934, at *4-5, 2014 U.S. Dist. LEXIS
36514, at *9 (W.D. Pa. Mar. 20, 2014) (rejecting Margo’s holding in part because its
“interpretation of the statutory definition of ‘prospective relief’ fails to consider the entire text
and purpose of section 3626”).
Defendants further argue that the plaintiff is not entitled to punitive damages because his
allegations of extortion, blackmail, and conspiracy are not supported by any facts. Defendants
refer to their conduct during an investigation of a corrupt officer. Defendants’ argument is
misplaced given that the plaintiff has not alleged that they engaged in an investigation of a
corrupt officer. Plaintiff has sufficiently alleged that the defendants’ conduct was either
20

motivated by evil intent or involved a reckless disregard for his federally protected rights. Thus,
plaintiff has asserted sufficient facts to show that punitive damages may be justified if he
prevails in this action. See Smith v. Wade, 461 U.S. 30, 56 (1983) (punitive damages are
available in a section 1983 action “when the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous indifference to the federally
protected rights of others”). The motion to dismiss is denied as to the request for punitive
damages.
H.

Compensatory Damages

Defendants argue that plaintiff’s claims for compensatory damages are barred by 42
U.S.C. § 1997e(e), which states that “no Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.” The Second Circuit has concluded
that section 1997e(e) “applies to claims in which a plaintiff alleges constitutional violations so
that the plaintiff cannot recover damages for mental or emotional injury for a constitutional
violation in the absence of a showing of actual physical injury.” Thompson v. Carter, 284 F.3d
411, 417 (2d Cir. 2002). Thus, plaintiff may not recover compensatory damages for emotional
injuries absent a demonstration of physical injury.
Plaintiff alleged that Inmate Rodriguez hit him in the head, face, and body and choked
him. Plaintiff claims that he suffered injuries to his head, face and neck and abrasions on his
face and neck. In addition, a medical report attached to the complaint includes a description of
the plaintiff’s injuries, including abrasions and swelling to his face and head and an abrasion on
his back. See Compl., Ex. 16. Thus, there are allegations that the plaintiff suffered some

physical injuries as a result of the assault. Accordingly, the motion to dismiss is denied as to the
claim for compensatory damages.
IV.

Conclusion
The Motion to Dismiss [Doc. No. 38] is GRANTED as to (1) the January 2014 failure to

protect claim against defendants Gonzalez, Torres, Lizon, Ulm, Leiper, Clayton, Wright, Warden
Maldonado, Whidden, Manning, Barone, Ott, Dzurenda, Semple, Lewis, and Quiros, (2) the
general claims of retaliation against defendants Quiros, Lizon, Wright, Barone, Lewis, Semple,
and Dzurenda, (3) the state law negligence claims against all defendants in their individual and
official capacities, and (4) the request for declaratory relief and DENIED as to (1) the January
2014 failure to protect claim against defendants Godding, Chapdelaine, McCormick, Lindsey,
and Correctional Officer Maldonado, (2) the claim that defendants Gonzalez, Torres, Ulm,
Leiper, and Clayton were deliberately indifferent to his safety when they called him a snitch in
front of other inmates, (3) the claim that defendants Lizon, Wright, Warden Maldonado,
Manning, Ott, Barone, Dzurenda, Semple, Lewis, and Quiros failed to take any action to protect
him from potential harm as a result of the conduct of defendants Gonzalez, Torres, Ulm, Leiper
and Clayton, (4) the specific claims of retaliation against defendants Whidden and Warden
Maldonado, and (5) the requests for injunctive and declaratory relief and punitive and
compensatory damages. The Motion to Dismiss [Doc. No. 38] is also DENIED on the ground of
qualified immunity and on the ground of lack of personal involvement. The request for
injunctive relief is DISMISSED sua sponte as barred by the Eleventh Amendment.

SO ORDERED this 29th day of September, 2015, at Bridgeport, Connecticut.

/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE