Alston v. Lindsey et al

Filing 33

ORDER granting 18 motion to amend/correct. See attached corrected order. Signed by Judge Alfred V. Covello on 4/7/17. (Covello, Alfred)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
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: CASE NO. 3:15-cv-1673 (AVC)
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IRA ALSTON,
plaintiff,
v.
ALFONSO LINDSEY, ET AL.,
defendants.

RULING AND ORDER
The plaintiff, Ira Alston, confined at the MacDougallWalker Correctional Institution in Suffield, Connecticut, filed
this case pro se under 42 U.S.C. § 1983.

On January 22, 2016,

Court, Haight, D.J., noted that Alston failed to identify any
federal rights violated by the defendants and permitted him to
amend his complaint to do so.

Alston has filed an amended

complaint setting forth the same factual allegations and
identifying various federal and state claims.
defendants:

He names the same

lieutenants Alfonso Lindsey, David Josefiak and

Sean Guimond, captains Tuttle, Gregio Robles and Brian Jackson,
warden Anne Cournoyer, nurses Lisa Mosier, Kristin Carabine and
Victoria Scruggs, and correctional officers Mihaliak, Kimber,
Hafner, Feliz, Cassidy, Cichocki, Munson and Boudreau.

All of

the defendants are named in their individual and official
capacities.

Under section 1915A of title 28 of the United States Code,
the court must review prisoner civil complaints and dismiss any
portion of the complaint that is frivolous or malicious, that
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.

In reviewing a pro se complaint, the court must

assume the truth of the allegations, and interpret them
liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
Although detailed allegations are not required, the
complaint must include sufficient facts to afford the defendants
fair notice of the claims and the grounds upon which they are
based and to demonstrate a right to relief.
Twombly, 550 U.S. 544, 555-56 (2007).
are not sufficient.
(2009).

Conclusory allegations

Ashcroft v. Iqbal, 556 U.S. 662, 678

The plaintiff must plead “enough facts to state a claim

to relief that is plausible on its face.”
570.

Bell Atlantic v.

Twombly, 550 U.S. at

Nevertheless, it is well-established that “[p]ro se

complaints ‘must be construed liberally and interpreted to raise
the strongest arguments that they suggest.’”

Sykes v. Bank of

Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also
2

Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010)
(discussing special rules of solicitude for pro se litigants).
FACTS
The amended complaint alleges the following facts.

The

plaintiff is currently confined at the Northern Correctional
Institution, where the incident giving rise to the amended
complaint occurred.

On April 21, 2015, the defendants, Feliz

and Munson, escorted Alston to the shower.

While he was

showering, the defendants, Feliz, Munson, Boudreau, Kimber,
Cichocki, Mihaliak, Cassidy and Hafner, entered Alston’s cell,
destroying personal and legal property and disorganizing all of
his legal materials.

When Alston returned to his cell, he asked

Feliz what caused the destruction in his cell.

Feliz stated

that "this is how we feel about jailhouse lawyers."
Alston asked Munson and Feliz to summon a shift supervisor,
which they refused to do.

Alston, in an attempt to "get the

attention of the shift supervisor," then refused to permit
Munson and Feliz to remove his handcuffs.

During this standoff,

Mihaliak told Alston that the correctional officers would not
get in trouble for what they did to his cell because the cell
was not visible on the surveillance cameras.
summoned a shift supervisor.
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Kimber eventually

When the defendants, lieutenants Lindsey and Guimond,
arrived at the cell, Alston informed them of what the
correctional officers had done to his cell, but they refused to
look into the cell to view the destruction.

Instead, they

demanded that Alston place his hands through the trap in the
cell door to have the handcuffs removed.

Lindsey and Guimond

refused to document the damage to Alston’s belongings, stating
that they saw nothing to document.

Alston asked Lindsey and

Guimond to record the state of his cell on a handheld camera.
Lindsey refused and stated that a handheld camera would only be
used to document Alston’s placement on in-cell restraint status
if he failed to return the handcuffs.
Lindsey ordered Munson to get a handheld video camera and
called for a mental health staff member to come to Alston’s cell
for verbal intervention.

Mental health worker Patrick Ward, a

non-party, arrived and spoke with Alston, a conversation that
was recorded on the video camera operated by Munson.

When Ward

looked into Alston’s cell, he stated that he had seen worse.
Ward agreed to Alston’s request that he be a witness to the
damage, which led the plaintiff to agree to return the
handcuffs.

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When Alston turned around to place his hands through the
trap, Lindsey directed him to lay face-down on the bottom bunk
for application of restraints so that the plaintiff could be
placed on in-cell restraint status. Munson, who was operating
the video camera, purposefully failed to capture the damage to
Alston’s cell pursuant to Lindsey’s order.

According to the

complaint, Munson “strategically maneuver[ed] the camera
footage”.

The defendants, Lindsey, Cassidy, Hafner and

Boudreau, applied shackles and a tether chain and escorted
Alston to another housing unit where he remained on in-cell
restraints for three days.1
These defendants intentionally made use of a tether chain
shorter than that normally used, which caused Alston to remain
bent over at the waist.

Despite knowing that the plaintiff's

handcuffs were already too tight at this point, Lindsey directed
Cassidy to tighten them even more and Cassidy tightened them.
The handcuffs caused Alston pain, and left a bruise and scar on
his wrists that were still visible as of the date he filed the

1 According to the plaintiff's amended complaint, "[i]n-cell restraint
status is the placement of an acutely disruptive inmate inside a strip-cell
in handcuffs (in front), leg irons and a tether chain between the leg irons
and the handcuffs."

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complaint.

Alston complained about the pain and suffering

caused by the restraints and requested that they be adjusted.
The restraints were used "solely to punish and harass" Alston.
Lindsey and Guimond, "who had opportunity and authority to
adjust the restraints[,] did nothing," nor did those defendants
or the defendants, Boudreau, Hafner, or Cassidy, investigate the
plaintiff's alleged pain and suffering.

Further, the

defendants, Cournoyer, Robles, Guimond, Lindsey, and Tuttle, all
"approved of the in-cell restraint placement and the type of
restraints used."
At the direction of the defendants, Cournoyer, Josefiak,
Robles, Guimond, Bradley, Lindsey, and Tuttle, Alston remained
on in-cell restraints for three days.

At all times, he was

compliant with all rules and regulations and was never
disruptive and did not misbehave.

The defendants, Cournoyer,

Jackson, Robles, Tuttle, Josefiak, Lindsey, and Bradley,
"continued plaintiff on in-cell restraint status for three (3)
days without need or valid penological justification."

During

his confinement, Alston spoke with the defendants, Cournoyer,
Robles, Tuttle, Josefiak, Jackson, Guimond, Lindsey, and
Bradley, and showed them how tight the restraints were and that
they were "causing pain, bruising and unnecessary suffering."
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Despite these conversations, and that they were aware of the
plaintiff's pain and suffering, at no time did any of these
defendants investigate Alston’s claims or take any corrective
action, nor did they take him off in-cell restraint status.

The

plaintiff also spoke with defendants, nurses Mosier, Carabine,
and Scruggs, during his confinement.

He informed each nurse

that his restraints were too tight and were causing pain and
suffering.

None of them properly checked the restraints, or

investigated or reported any of his claims.

The complaint

alleges that they “did nothing” “despite first hand knowledge
that the restraints were much too tight.”

Rather, the nurse

defendants created false reports that they checked the
restraints, that they were appropriate, and that Alston did not
voice a complaint of harm.

These false reports were part of "a

calculated, intentional design to prevent the plaintiff from
proving the extent and cause of his injuries in a court of law."
The defendants, Cournoyer, Jackson, Robles, Tuttle, Josefiak,
Lindsey, and Guimond, told the defendants, Mosier, Carabine, and
Scruggs, "to create false reports to prevent the plaintiff from
proving the extent and cause of his pain, suffering, and
injuries."

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When he was removed from in-cell restraint status, Alston
informed the defendant, Bradley, of his injuries.

Bradley then

stated that the defendant, Scruggs, would document Alston’s
injuries.

However, Scruggs never did so.

Instead, she "created

reports indicating the plaintiff had no injuries and voiced no
complaints of harm, pain and suffering."
In light of the above allegations, Alston seeks
compensatory and punitive damages as well as declaratory and
injunctive relief and attorney fees, totaling $2,200,000.
DISCUSSION
Alston asserts a First Amendment retaliation claim against
the defendants, Feliz, Kimber, Munson, Mihaliak, Hafner,
Cassidy, Cichocki and Boudreau, for destroying his personal and
legal property.

He asserts six Eighth Amendment claims for use

of excessive force and deliberate indifference to an excessive
risk of harm:

(1) against Lindsey and Guimond for deciding to

place him on in-cell restraint status; (2) against Lindsey and
Cassidy for tightening the restraints; (3) against Lindsey,
Hafner, Boudreau and Cassidy for placing him in in-cell
restraints; (4) against Josefiak, Jackson, Cournoyer, Robles,
Tuttle, Lindsey and Guimond for approving and continuing him on
in-cell restraints; (5) against Josefiak, Jackson, Cournoyer,
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Robles, Tuttle, Lindsey and Guimond for failing to adjust the
restraints despite knowledge that the restraints were too tight;
and (6) against Mosier, Carabine and Scruggs for failing to
cause the restraints to be adjusted despite knowledge that the
restraints were too tight.

The plaintiff also asserts state law

claims for assault and battery and intentional infliction of
emotional distress, and for cruelty to persons in violation of
Connecticut General Statutes §53-20.
I.

Excessive Force
The use of excessive force against a prisoner can

constitute cruel and unusual punishment even where the inmate
does not suffer serious injuries.

See Hudson v. McMillian, 502

U.S. 1, 4 (1992), accord Wilkins v. Gaddy, 559 U.S. 34, 34, 36
(2010) (per curiam).

The "core judicial inquiry" is "not

whether a certain quantum of injury was sustained but rather
whether force was applied in a good faith effort to maintain or
restore discipline, or maliciously and sadistically to cause
harm."

Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7

(internal quotation marks omitted).

Unwarranted placement on

in-cell restraint status can constitute the use of excessive
force where, as here, Alston alleges that the restraints were
used as punishment after he had agreed to release the handcuffs.
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The various Eighth Amendment claims and the state law claim for
assault and battery will proceed at this time.
II.

Retaliation
Prison officials may not retaliate against inmates for

exercising their constitutional rights.

To state a claim for

retaliation, the plaintiff must allege facts demonstrating: (1)
that he was engaged in constitutionally protected activity, (2)
the defendants took adverse action against him, and (3) that
there is a causal connection between the protected activity and
the adverse action.
2003).

Davis v. Goord, 320 F.3d 346, 352 (2d Cir.

To satisfy the third element, the plaintiff must allege

that the protected activity "was a substantial or motivating
factor for the adverse action taken" against him.

Bennett v.

Goord, 343 F.3d 133, 137 (2d Cir. 2003) (citation omitted).
Here, the plaintiff alleges that the defendants told him that
his property was damaged because he was a jailhouse lawyer.
This allegation is sufficient to support a retaliation claim at
this stage of litigation.
III. Intentional Infliction of Emotional Distress
Alston asserts a state law claim for intentional infliction
of emotional distress.

To state such a claim, he must show that

the defendants intended to inflict emotional distress or knew or
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should have known that emotional distress would likely result
from their conduct, that the conduct was extreme and outrageous,
that the defendants’ conduct is the likely cause of the
plaintiff’s distress and that the plaintiff’s distress was
severe.

Gagnon v. Housatonic Valley Tourism Dist. Comm=n, 888

A.2d 104, 113 (Conn. App. 2006).

The court must determine

whether the defendants’ conduct rises to this level by assessing
the plaintiff’s allegations and determining whether a reasonable
factfinder could find the conduct described to be extreme and
outrageous.

Id. at 113-14.

Liability for intentional

infliction of emotional distress requires "conduct exceeding all
bounds usually tolerated by decent society, of a nature which is
especially calculated to cause, and does cause, mental distress
of a very serious kind."

DeLaurentis v. New Haven, 597 A.2d

807, 828 (Conn. 1991) (internal quotation marks and citation
omitted).
Alston alleges that the restraints were applied too tightly
causing pain. He remained in this state for three days.
Application of in-cell restraints is an approved sanction.

See

Department of Correction Administrative Directive 6.5, Section
8(B), www.ct.gov.doc (last visited Nov. 29, 2016). The court
concludes, however, that the alleged abuse of this approved
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sanction by applying restraints too tightly and ordering their
use after the plaintiff had complied with the order to return
the handcuffs, exceeds bounds usually tolerated by decent
society.

Assuming, as it must at this stage of the proceedings,

the truth of the plaintiff’s allegations, Alston’s claim will
proceed at this time.
IV.

C.G.S. § 53-20
Finally, Alston asserts a claim for violation of

Connecticut General Statute § 53-20.
statute.

This is a criminal

The statute contains no provision permitting a private

right of action for a violation and research reveals no cases
recognizing such a right.

Accordingly, this claim is dismissed

as lacking an arguable legal basis.
CONCLUSION
The court enters the following orders:
(1)

The claim for violation of Connecticut General

Statutes § 53-20 is DISMISSED pursuant to 28 U.S.C. §
1915A(b)(1).

The case will proceed on the remaining claims set

forth above.
(2)

The clerk shall verify the current work address of

each defendant with the Department of Correction Office of Legal
Affairs, mail a waiver of service of process request packet
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containing the amended complaint to each defendant at that
address within twenty-one (21) days of this order, and report to
the court on the status of those waiver requests on the thirtyfifth (35) day after mailing.

If any defendant fails to return

the waiver request, the clerk shall make arrangements for inperson service by the U.S. Marshals Service on that defendant in
his individual capacity and the defendant shall be required to
pay the costs of such service in accordance with Federal Rule of
Civil Procedure 4(d).
(3)

The clerk shall prepare a summons form and send an

official capacity service packet to the U.S. Marshal Service.
The U.S. Marshal is directed to effect service of the amended
complaint on the defendants in their official capacities at the
Office of the Attorney General, 55 Elm Street, Hartford, CT
06141, within twenty-one (21) days from the date of this order
and to file a return of service within thirty (30) days from the
date of this order.
(4)

The clerk shall send written notice to the plaintiff

of the status of this action, along with a copy of this order.
(5)

The clerk shall send a courtesy copy of the amended

complaint and this ruling and order to the Connecticut Attorney

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General and the Department of Correction Office of Legal
Affairs.
(6)

The defendants shall file their response to the

complaint, either an answer or motion to dismiss, within sixty
(60) days from the date the waiver form is sent.

If they choose

to file an answer, they shall admit or deny the allegations and
respond to the cognizable claims recited above.

They also may

include any and all additional defenses permitted by the federal
rules.
(7)

Discovery, pursuant to Federal Rules of Civil

Procedure 26 through 37, shall be completed within seven months
(210 days) from the date of this order.

Discovery requests need

not be filed with the court.
(8)

All motions for summary judgment shall be filed within

eight months (240 days) from the date of this order.
(9)

Pursuant to Local Civil Rule 7(a), a nonmoving party

must respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed.

If no response is filed, or

the response is not timely, the dispositive motion can be
granted absent objection.
(10) If the plaintiff changes his address at any time
during the litigation of this case, Local Court Rule 83.1(c)2
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provides that he MUST notify the court.
result in the dismissal of the case.

Failure to do so can

The plaintiff must give

notice of a new address even if he is incarcerated.

The

plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice.
It is not enough to just put the new address on a letter without
indicating that it is a new address.

If the plaintiff has more

than one pending case, he should indicate all of the case
numbers in the notification of change of address.

The plaintiff

should also notify the defendants or their attorney of his new
address.
(11) The plaintiff shall use the Prisoner Efiling Program
when filing all documents with the court.
SO ORDERED this 7th day of April 2017 at Hartford,
Connecticut.
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/s/
Alfred V. Covello
United States District Judge

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