Darazs v. Dzurenda et al

Filing 37

INITIAL REVIEW ORDER AND RULING denying as moot 27 Motion to Dismiss; denying as moot 29 Motion for Extension of Time to File Response/Reply ; denying without prejudice to renew at a later stage of the litigation re 30 Motion to Appoint Cou nsel ; denying for failure to comply with Local Rule 37 re 31 Motion to Compel; denying 32 First Motion to Amend/Correct; granting 33 Second Motion to Amend/Correct; denying 18 Motion for Extension of Time ; denying for failure to comply with Local Rule 37 re 19 Motion to Compel; denying 20 Motion for Default; denying 23 Motion for Extension of Time. Complaint against defendant Dzurenda are Dismissed. The Case against defendants Erfe, Mudano, Williams, Guillot, Surfus, Senita, Johnson, Iozzia, Dewaine, Turner, Servidio, Gingras, Evans and Quenneville On the Eight Amendment Claim will proceed. Signed by Judge Janet C. Hall on 6/24/2015. (Malone, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHRISTOPHER DARAZS,
Plaintiff,

PRISONER CASE NO.
3:14cv1330 (JCH)

v.
DZURENDA, et al.,
Defendants.

JUNE 24, 2015

RULING ON PENDING MOTIONS
The plaintiff, Christopher Darazs, currently incarcerated at Garner Correctional
Institution, initiated this action by filing a civil rights Complaint pro se. He named
Commissioner Dzurenda, Warden Erfe, Deputy Warden Mudano, Lieutenants Cogner,
Gillette and Avery, Correctional Officers Irizarry, Johnson, Lee and John Does Nos. 4-10,
Social Workers Jane Doe 1 and John Does 2-4 and Nurses John Doe 1 and Jane Doe 2
as defendants.
On January 21, 2015, the court concluded that the allegations in the Complaint
stated plausible claims of excessive use of force, failure to protect the plaintiff from harm,
deliberate indifference to the plaintiff’s safety and deliberate indifference to the plaintiff’s
medical and mental health needs in violation of the Eighth Amendment as well as state law
claims of assault and battery.

The court informed the plaintiff that it would be unable to

serve the Complaint on the Jane and John Doe defendants because he had not identified
those defendants by their first and last names. The court permitted the plaintiff ninety (90)
days to conduct discovery and to file a notice identifying the Jane and John Doe
defendants by their first and last names.
On April 13, 2015, the plaintiff filed an Amended Complaint listing Commissioner
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Dzurenda as the only defendant in the caption.

On May 6, 2015, the defendants moved

to dismiss the Complaint. In response, the plaintiff has moved for an extension of time to
respond to the Motion to Dismiss and also to file a second amended complaint. Pending
are multiple motions filed by the plaintiff in addition to the Motion to Dismiss filed by the
defendants. For the reasons set forth below, the second Motion to Amend is granted, the
Motion to Dismiss is denied without prejudice, and all of plaintiff’s other motions are denied.
I.

Motions for Extension of Time [Docs. Nos. 18, 23]
The plaintiff seeks a thirty day extension of time “because council failed to respond

to interrogatories.” The plaintiff has not set forth a sufficient basis to support an extension
of time. Because the plaintiff has not demonstrated good cause to grant him an extension
of time, the Motion is denied.
The plaintiff seeks a ninety day extension of time “due to a failure of
communication.” He claims the his correctional counselors need to investigate why he did
not receive a copy of the appearance filed by counsel for the defendants. The plaintiff has
failed to set forth good cause to grant him an extension of time. Thus, the Motion is
denied.
II.

Motion for Default [Doc. No. 20]
The plaintiff seeks to default the defendants for failure to appear. Because counsel

has appeared for the defendants and has filed a motion to dismiss, the defendants are not
in default. The Motion for Default is denied.
III.

Motions to Compel [Docs. Nos. 19, 31]
In the first Motion to Compel, the plaintiff states that he sent interrogatories and a

request for production of documents to the Assistant Attorney General’s Office in Hartford
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on January 28, 2015. He claims that the defendants have not responded to these
discovery requests. He seeks to compel the defendants to respond to his discovery
requests. In response to the Motion to Compel, counsel for the defendants represents that
she never received a copy of the plaintiff’s January 28, 2015 discovery requests.
Local Rule 37(b)1 requires that any discovery motion filed with the court be
accompanied by a detailed memorandum of law containing the specific items of discovery
sought or opposed. Rule 37(b)1 provides in pertinent part:
Memoranda by both sides shall be filed with the Clerk in accordance with
Rule 7(a)1 of these Local Rules before any discovery motion is heard by the
Court. Each memorandum shall contain a concise statement of the nature of
the case and a specific verbatim listing of each of the items of discovery
sought or opposed, and immediately following each specification shall set
forth the reason why the item should be allowed or disallowed. . . . Every
memorandum shall include, as exhibits, copies of the discovery requests in
dispute.
D. Conn. L. Civ. R. 37(b)1.
The plaintiff has not filed a memorandum in support of his Motion that sets forth the
reasons why each of the requested items of discovery should be allowed. Thus, the
plaintiff did not comply with Local Rule 37(b)1. Furthermore, counsel for the defendants
has indicated that, after she received the Motion to Compel with the discovery request
attached, she mailed the plaintiff the documentation that he sought in that request. Thus,
the first Motion to Compel (Doc. No. 19) is denied for failure to comply with Local Rule
37(a) and (b)1 and as moot.
In the second Motion to Compel (Doc. No. 31), the plaintiff states that in March and
April 2015, he submitted written requests for photographs and videotapes pursuant to Rule
33 of the Federal Rules of Civil Procedure. He claims to have received two black and
white photographs, but seeks additional photographs. He also requests that the
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defendants produce color photographs and color videotapes of the incidents that are the
subject of the case. He states that the photographs and video tapes are crucial to proving
his case. 1
The plaintiff did not attach the discovery requests to his Motion. Nor did he file a
memorandum in support of his Motion. The second Motion to Compel (Doc. No. 31) is
denied for failure to comply with Local Rule 37.
IV.

Motions to Amend [Docs. Nos. 32, 33]
The plaintiff has filed two Motions to Amend to clarify his claims and to add newly

identified defendants in place of the Doe defendants. The proposed amended complaint
attached to the first motion to amend only lists Commissioner Dzurenda in the caption.
Rule 10(a) of the Federal Rules of Civil Procedure requires all defendants to be listed in
the caption of a complaint or an amended complaint. Based on representations by the
plaintiff in his second Motion to Amend, he did not intend to proceed only as to defendant
Dzurenda. Accordingly, the first Motion to Amend (Doc. No. 32) is denied.
In the second Motion to Amend (Doc. No. 33), the plaintiff states that he has
identified the Doe defendants and seeks to add those defendants to the case. The
proposed Amended Complaint attached to the second Motion to Amend includes the
defendants in the caption which is set forth on the first three pages. Those defendants
are Commissioner Dzurenda, Warden Erfe, Deputy Warden Mudano, Captain Williams,
Lieutenant Iozzia, Correctional Officers Johnson, Guillot, Senita, Gingras, Servidio,

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In their Reply, defendants represent that the black and white photos provided to plaintiff are “the
only photos known to exist.” Defendants’ Opposition to Motion to Compel Discovery (Doc. No. 34).
Defendants’ counsel further notes that she has made arrangements to permit the plaintiff to view the videos
of the incident, but that plaintiff is not permitted possession of the video for security reasons. Id.

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Dewaine, Surfus and Turner, Medic Evans and Medic/Nurse Quenneville.
The Federal Rules of Civil Procedure provide that a plaintiff may amend his
complaint once as of right “within 21 days after serving [the complaint] or . . . [within] 21
days after service of a” pleading responsive to the complaint “or 21 days after service of a
motion” to dismiss, for more definite statement or to strike, whichever is earlier.” The
plaintiff has already filed one amended complaint. Thus, he may not file a second
amended complaint without permission of the court.
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).
The court concludes that the plaintiff’s Motion was not filed in an effort to unduly
delay the case and that the defendants will not be prejudiced if the court grants the
plaintiff’s Motion. Because the plaintiff seeks to clarify his claims and identify the
individuals who were actually involved in the alleged excessive use of force, failure to
protect and deliberate indifference to medical needs claims, justice requires the court to
permit the plaintiff to file a second amended complaint. The second Motion to Amend is
granted (Doc. No. 33). The Clerk is ordered to docket the proposed thirty-four page
Amended Complaint attached to the second Motion to Amend as a Second Amended
Complaint. The letter attached to the Motion shall NOT be docketed as part of the
amended complaint.

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V.

Second Amended Complaint
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 quotation marks and citations
omitted). Although courts still have an obligation to liberally construe a pro se complaint,
the complaint must include sufficient factual allegations to meet the standard of facial
plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
The plaintiff alleges that on February 13, 2014, at Corrigan-Radgowski Correctional
Institution, defendants Williams, Guillot, Surfus, Senita, Johnson, Iozzia, Dewaine, Turner,
Servidio and Gingras responded to a Code Blue in the cafeteria. All of these defendants
either used excessive force against him or failed to intervene to stop excessive force from
being used against him. As a result, he suffered multiple injuries. Defendants Evans and
Quenneville failed to treat the plaintiff’s injuries or provide relief for his pain.
The plaintiff made defendants Erfe and Mudano aware of the use of excessive force
against him, but they failed to take any action to remedy this conduct. They also failed to
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properly train the officers as to the proper amount of force to be used to subdue an inmate.
The plaintiff seeks monetary damages from the defendants in their individual capacities
and declaratory and injunctive relief from the defendants in their official capacities.
The plaintiff does not mention Commissioner Dzurenda other than in his description
of parties. The plaintiff describes Commissioner Dzurenda as having the responsibility of
creating and enforcing policies, training and supervising Department of Correction
employees and providing care to inmates. A simple description of Commissioner
Dzurenda’s duties does not state a claim against him. Furthermore, Commissioner
Dzurenda, as a supervisory, cannot be held liable for damages under section 1983 solely
for the acts of his subordinates. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).
The Second Amended Complaint is devoid of facts to support a claim against
defendant Dzurenda. Because the plaintiff has not alleged that defendant Dzurenda
violated his federally or constitutionally protected rights, all claims against defendant
Dzurenda are dismissed. See 28 U.S.C. § 1915A(b)(1).
The court concludes the allegations in the Second Amended Complaint state
plausible claims of 1) excessive use of force, failure to protect the plaintiff from harm and
deliberate indifference to the plaintiff’s safety against defendants Erfe, Mudano, Williams,
Guillot, Surfus, Senita, Johnson, Iozzia, Dewaine, Turner, Servidio, and Gingras and 2)
deliberate indifference to the plaintiff’s medical needs against defendants Evans and
Quenneville. These Eighth Amendment claims will proceed against defendants Erfe,
Mudano, Williams, Guillot, Surfus, Senita, Johnson, Iozzia, Dewaine, Turner, Servidio,
Gingras, Evans and Quenneville in their individual and official capacities. In addition, the
state law claim of assault and battery will proceed against defendants Williams, Guillot,
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Surfus, Senita, Johnson, Iozzia, Dewaine, Turner, Servidio and Gingras in their individual
and official capacities.
VI.

Motion to Dismiss [Doc. No. 27]
Motion for Extension of Time to Respond to Motion to Dismiss [Doc. No. 29]
Commissioner Dzurenda moves to dismiss the claims against him. In view of the

fact that the court has dismissed all claims against defendant Dzurenda, the Motion to
Dismiss (Doc. No. 27) and the Motion for Extension of Time to Respond to the Motion to
Dismiss are denied as moot (Doc. No. 29).
VII.

Motion to Appoint Counsel [Doc. No. 30]
The plaintiff is seeking an appointment of pro bono counsel pursuant to 28 U.S.C. §

1915. There is no right to counsel in a civil case. The Second Circuit has made clear that
before an appointment is even considered, the indigent person must demonstrate that he
is unable to obtain counsel. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).
The plaintiff alleges that he sent letters to seven attorneys in 2014 as well as to the
Yale Law School and the American Civil Liberties Union, but no one will take his case.
The plaintiff does not assert that he has contacted the Inmates’ Legal Assistance Program
with regard to litigating this case. The plaintiff has not demonstrated that he is unable to
secure the assistance of counsel independently.
The plaintiff states that the issues in the case are complex, and he will need an
attorney at trial to present evidence and cross-examine witnesses. The plaintiff has just
filed a Second Amended Complaint. The case is not ready to proceed to trial. Thus, the
plaintiff’s request for counsel is premature.
For all of the reasons set forth above, the Motion for Appointment of Counsel (Doc.
No. 30) is denied without prejudice. The plaintiff may renew his Motion at a later stage of
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the litigation.
VIII.

CONCLUSION
The Motions for Extension of Time [Docs. Nos. 18, 23] and Motion for Default [Doc.

No. 20] are DENIED. The First Motion to Compel [Doc. No. 19] is DENIED for failure to
comply with Local Rule 37 and as moot. The Second Motion to Compel [Doc. No. 31] is
DENIED for failure to comply with Local Rule 37. The Motion for Appointment of Counsel
[Doc. No. 30] is DENIED without prejudice. The plaintiff may renew his motion at a later
stage of the litigation. The Motion to Dismiss [Doc. No. 27] and the Motion for Extension
of Time [Doc. No. 29] to respond to the motion to dismiss are DENIED as moot. The First
Motion to Amend [Doc. No. 32] is DENIED.
The Second Motion to Amend [Doc. No. 33] is GRANTED. The Clerk shall docket
the twenty-three page proposed amended complaint attached to the second Motion
to Amend as a Second Amended Complaint. The letter attached to the Motion shall
NOT be docketed as part of the amended complaint. The Clerk shall also docket the
exhibits on pages 26-34 of Doc. No. 32-1 as exhibits to the Second Amended
Complaint. 2 The claims in the Second Amended Complaint against defendant Dzurenda
are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
The Eighth Amendment claims in the Second Amended Complaint against
defendants Erfe, Mudano, Williams, Guillot, Surfus, Senita, Johnson, Iozzia, Dewaine,
Turner, Servidio and Gingras for excessive use of force, failure to protect the plaintiff from

2

Darazs cites to these same Exhibits in his proposed Second Amended Complaint attached to his
second Motion to Amend (Doc. No. 33); however, he appears to have inadvertently omitted them from Doc.
No. 33-1.

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harm and deliberate indifference to the plaintiff’s safety and the Eighth Amendment claims
against defendants Evans and Quenneville for deliberate indifference to the plaintiff’s
medical needs as well as the state law claim of assault and battery against defendants
Williams, Guillot, Surfus, Senita, Johnson, Iozzia, Dewaine, Turner, Servidio and Gingras
will proceed.
Within twenty-one (21) business days of this Order, the Clerk shall ascertain from
the Department of Correction Office of Legal Affairs the current work addresses for each of
the following defendants: Warden Erfe, Deputy Warden Mudano, Captain Williams,
Lieutenant Iozzia, Correctional Officers Johnson, Guillot, Senita, Gingras, Servidio,
Dewaine, Surfus and Turner, Medic Evans and Medic/Nurse Quenneville in his or her
individual capacity and mail waiver of service of process request packets to each
defendant in his or her individual capacity at his or her current work address. If any
defendant fails to return the waiver request within thirty days, the Clerk shall make
arrangements for in-person service by the U.S. Marshals Service and the defendant shall
be required to pay the costs of such service in accordance with Federal Rule of Civil
Procedure 4(d).
Within twenty-one (21) days of this Order, the U.S. Marshals Service
shall serve the summons, a copy of the Complaint and this Order on the defendants in
their official capacities by delivering the necessary documents in person to the Office of the
Attorney General, 55 Elm Street, Hartford, CT 06141.
Defendants shall file their response to the Second Amended Complaint, either an
answer or motion to dismiss, within thirty (30) days from the date the Notice of Lawsuit and

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Waiver of Service of Summons forms are mailed to them. If the defendants choose to file
an answer, they shall admit or deny the allegations and respond to the cognizable claims
recited above. They may also include any and all additional defenses permitted by the
Federal Rules.
Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be
completed within six months (180 days) from the date of this order. Discovery requests
need not be filed with the court.
All motions for summary judgment shall be filed within seven months (210 days)
from the date of this order.
SO ORDERED this 24th day of June, 2015, at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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