Torres v. McGrath et al
ORDER granting 19 Motion to Dismiss for Lack of Jurisdiction. Claims against Defendants Lacasse, McFarland, and McGrath are dismissed for the reasons set forth in the Decision attached. Signed by Judge Vanessa L. Bryant on 1/9/2017. (Hudson, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBERT MCGRATH, et al.
Civil No. 3:15 cv 1558(VLB)
RULING ON MOTION TO DISMISS
The plaintiff, Candido Torres, is currently confined in Connecticut. He
initiated this action by filing a complaint against Unit Manager Robert McGrath,
Lieutenant James Brown, Counselor Supervisor Osden, Director Kim Lacasse,
Lieutenant McFarland, the New Hampshire Department of Corrections and the
State of Connecticut Department of Correction.
On May 3, 2016, the court dismissed the Fifth and Fourteenth Amendment
claims and all other federal claims against Brown, the State of Connecticut
Department of Correction and the State of New Hampshire Department of
Corrections pursuant to 28 U.S.C. § 1915A(b)(1), dismissed the state law claims
against all defendants in their individual and official capacities pursuant to 28
U.S.C. § 1915A(b)(1) and (2), and dismissed all federal claims for monetary
damages against Lacasse, McGrath, Osden and McFarland in their official
capacities pursuant to 28 U.S.C. § 1915A(b)(2). The court concluded that the
Eighth Amendment claims would proceed against Lacasse, McGrath, Osden and
McFarland in their individual capacities and against Osden in her official capacity
and the First Amendment retaliation claim would proceed against Lacasse and
McGrath in their individual capacities and against Osden in her official capacity.
Pending before the court is a motion to dismiss filed by Lacasse,
McFarland and McGrath, employees of the New Hampshire Department of
Corrections for lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2). For the reasons discussed below, the Motion to Dismiss is
The complaint included the following allegations: The plaintiff was
convicted in the State of Connecticut. During his confinement in the Connecticut
prison system, he renounced his membership in the gang called The Latin Kings.
At some point, Connecticut Department of Correction officials transferred the
plaintiff to the New Hampshire Department of Corrections to serve his sentence.
After his transfer to a New Hampshire prison, the plaintiff became inducted into
the Neta prison gang.
In December 2014, the plaintiff was confined at the New Hampshire State
Prison for Men in Concord, New Hampshire (“NH Concord”). In late December
2014, the plaintiff became upset about not being permitted to speak Spanish
freely and engaged in an argument with correctional staff. Shortly after the
argument, the warden transferred the plaintiff to the Northern New Hampshire
Correctional Facility in Berlin, New Hampshire (“NH Berlin”). The plaintiff claims
that his girlfriend learned from New Hampshire Population Management and
Classification Director Lacasse that he had been transferred in retaliation for his
complaints about staff refusing to permit him to freely speak Spanish. The
plaintiff later learned that Unit Manager McGrath was also responsible for the
decision to transfer him to Berlin.
The plaintiff married his girlfriend on January 15, 2015. His wife made him
choose between her and his membership in a prison gang.
Between February and May 2015, the plaintiff and his wife wrote many
letters to Counselor Supervisor Jaclyn Osden, who works in the Sentence
Calculation and Interstate Management Office of the Connecticut Department of
Correction. The plaintiff informed Supervisor Osden that he sought to renounce
his membership in the Neta prison gang and that he and his wife were very
concerned about potential reprisals by members of the prison gang after he
renounced his membership in the gang. He made it clear that he feared for his
On March 13, 2015, the plaintiff was cut in the back of the head by an
inmate who was part of an unidentified gang. Prison officials placed him in
protective custody. Despite the plaintiff’s concerns about his safety, Counselor
Supervisor Osden informed him that due to the fact that the cut was superficial,
he would not be transferred back to Connecticut.
On March 19, 2015, shortly after being transferred to general population, an
inmate assaulted the plaintiff in the bathroom. The plaintiff immediately
contacted prison staff, including Lieutenant McFarland. Prison staff did not
report the incident. Prison officials, including Lieutenant McFarland, did not
investigate the incident.
In April 2015, the plaintiff pleaded guilty to a disciplinary ticket charging
him with intoxication. He received multiple sanctions. Counselor Supervisor
Osden informed the plaintiff that he would not be able to return to Connecticut
due to a disciplinary infraction that he had received in August 2014. To be
eligible for transfer back to Connecticut, prison officials required the plaintiff to
be disciplinary report-free for one year.
On April 18, 2015, the plaintiff contacted Lieutenant McFarland and asked
to be placed on in-cell meals because he feared for his safety. He claimed that
the Neta gang had placed a hit on him. On April 21, 2015, Lieutenant McFarland
denied the plaintiff’s request.
On April 18, 2015, the plaintiff contacted Director Lacasse and sought to be
separated from certain inmates who were members of the Neta gang. Director
Lacasse responded that she would investigate the information provided by the
plaintiff to determine whether separation orders were warranted.
On May 5, 2015, due to threats against his safety and the theft of his
electronic game console, prison officials placed the plaintiff in protective
custody. The plaintiff wrote to Lieutenant McFarland and Director Lacasse and
informed them that he feared for his safety and was emotionally distraught
because he could not visit his mother who was chronically ill.
On May 11, 2015, he complained about having suicidal thoughts and feeling
depressed. Mental health staff offered the plaintiff an anti-depressant. On May
12, 2015, the plaintiff informed Counselor Supervisor Osden that he would be
going on a hunger strike in an effort to remain in protective custody.
On May 14, 2015, the plaintiff tried to commit suicide by cutting his right
wrist. Mental health staff placed the plaintiff on suicide watch in an observation
cell and checked him every fifteen minutes. Prison staff also transported him to a
hospital to have his wrist checked. The plaintiff remained on suicide watch until
May 27, 2015.
On May 28, 2015, prison officials at NH Berlin transferred the plaintiff back
to NH Concord. On May 29, 2015, prison officials at NH Concord transferred the
plaintiff back to a prison facility in Connecticut. The plaintiff subsequently
received medical and mental health treatment at Garner.
Standard of Review
When a defendant moves to dismiss a complaint pursuant to Rule 12(b)(2),
Fed. R. Civ. P. on the ground that the court lacks personal jurisdiction over him, it
is plaintiff’s burden to demonstrate that the court has jurisdiction over the
defendant. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). If
the motion is asserted before any discovery is undertaken, a plaintiff only needs
to allege facts constituting a prima facie showing of personal jurisdiction. Gulf
Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). A plaintiff may make the
requisite factual showing through his or her “own affidavits and supporting
materials” which the court may consider and review. Whitaker, 261 F.3d at 208
(citations and internal quotation marks omitted). “[W]here the issue is addressed
on affidavits, all allegations are construed in the light most favorable to the
plaintiff and doubts are resolved in the plaintiff's favor [.]” A.I. Trade Finance, Inc.
v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993) (citations omitted).
In assessing whether personal jurisdiction may be exercised over a
defendant who is not a citizen of the forum state in a case involving a federal
question, the court “must engage in a two-step analysis.” Chloe v. Queen Bee of
Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010). The Court first looks to the
forum state’s long-arm statute. See id. (citations omitted). If the Court concludes
that the state’s long-arm statute authorizes the exercise of jurisdiction over the
defendant, the Court must then decide whether the statute satisfies the
“minimum contacts” and the “reasonableness” requirements of the Due Process
Clause of the Fourteenth Amendment to the United States Constitution. See id. at
164 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Connecticut’s long-arm statute, provides that a court may exercise
jurisdiction over a nonresident defendant who “in person or through an agent”:
(1) Transacts any business within the state;
(2) commits a tortious act within the state . . .;
(3) commits a tortious act outside the state causing injury to a
person or property within the state . . . if such person or agent
(A) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state, or
(B) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue from
interstate or international commerce;
(4) owns, uses or possesses real property situated within the state;
(5) uses a computer . . . or a computer network . . . located within the
Conn. Gen. Stat. § 52-59b(a).
Defendants Lacasse, McFarland and McGrath aver that they are residents
of New Hampshire and are all employed in New Hampshire by the New Hampshire
Department of Corrections. [Mot. Dismiss, Dkt. Nos. 19-2 through 19-4.] They
have no direct personal or business contacts with the State of Connecticut. Id.
Furthermore, there are no allegations that Defendants Lacasse, McFarland, or
McGrath committed a tortious act within Connecticut, committed a tortious act
outside of Connecticut that caused an injury to a person within Connecticut, used
a computer or computer network located in Connecticut or owned or used
property in Connecticut. In addition, neither the alleged unconstitutional
conditions of confinement nor the alleged retaliatory conduct occurred in
Connecticut, but rather in New Hampshire.
The plaintiff has not responded to the motion to dismiss. Neither the
allegations of the Complaint nor anything else in the record demonstrate that
Connecticut General Statutes § 52-59b(a) authorizes the exercise of personal
jurisdiction over Defendants Lacasse, McFarland and McGrath in this action.1
Because the Court has concluded that the plaintiff has alleged no basis upon
which this Court may acquire personal jurisdiction, the court need not reach
the question of whether Connecticut’s long arm statute violates the Due
Process Clause of the Fourteenth Amendment.
The Motion to Dismiss [Dkt. No. 19] filed by Defendants Lacasse,
McFarland and McGrath is GRANTED on the ground that the Court lacks personal
jurisdiction over them. The claims against Defendants Lacasse, McFarland, and
McGrath are DISMISSED.
The Eighth and First Amendment claims will proceed against Osden in her
individual and official capacities.
SO ORDERED this 9th day of January 2017, at Hartford, Connecticut.
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE
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