Rogers v. Hines

Filing 51

ORDER. Plaintiff's second amended complaint 41 was filed without consent or leave of court. The Clerk is directed to STRIKE the second amended complaint from the docket.Defendants' motion to dismiss 34 is GRANTED as to any cla ims for damages against the defendants in their official capacities and DENIED in all other respects. Defendants' motion to dismiss [ECF Nos. 35] is redundant and is hereby DENIED. The 36 Motion for Protective Order is DENIED as moot. Signed by Judge Michael P. Shea on 12/20/2016. (Connelly, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

WAYNE ROGERS,
Plaintiff,
v.
GERALD HINES, et al.,
Defendants.

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CASE NO. 3:16-cv-457 (MPS)

DECEMBER 20, 2016

______________________________________________________________________________

RULING ON DEFENDANTS’ MOTION TO DISMISS
AND PLAINTIFF’S SECOND AMENDED COMPLAINT
Plaintiff Wayne Rogers, currently incarcerated at the MacDougall-Walker Correctional
Institution in Suffield, Connecticut, filed this case pro se under 42 U.S.C. § 1983. By Initial
Review Order filed May 4, 2016, the Court dismissed all claims against Defendants Chapdelaine,
Guadarrama, Millian, Malorana, and Bennett. The claims against defendants Hines, Rivera,
Anaya, Mahoney, Strange, Danek, Mclain, and Simmons1 for sexual assault and sexual
harassment, use of excessive force, unconstitutional conditions of confinement, supervisory
liability, and deliberate indifference to safety remain pending. See ECF No. 13 at 10.
The defendants move to dismiss some of the remaining claims on the grounds that the
court lacks jurisdiction and the plaintiff fails to state cognizable claims.2 The plaintiff has filed a

1

Plaintiff incorrectly identified this defendant as Simons in the complaint. The Court will use the correct

spelling.
2

Defendants filed their motion to dismiss (ECF No. 34) on August 29, 2016. The following day, they filed
a second motion to dismiss (ECF No. 35) to include exhibits omitted from the original motion. The second motion
to dismiss is redundant and is hereby DENIED.

memorandum in opposition to the motion along with a second amended complaint. In his
memorandum, the plaintiff mistakenly assumes that he may file an amended complaint as of
right in response to a motion to dismiss. Federal Rule of Civil Procedure 15(a)(1) provides that
“a party may amend its pleading once as a matter of course….” The plaintiff filed an amended
complaint on April 8, 2016. Thus, he may amend his complaint only with the written consent of
the defendants or leave of court. See Fed. R. Civ. P. 15(a)(2). As the plaintiff neither submitted
written consent from the defendants nor sought leave of court to file a second amended
complaint, the second amended complaint is ordered stricken from the record. The Court
considers the motion to dismiss as applied to the first amended complaint. For the reasons that
follow, the motion is granted in part and denied in part.
I.

Facts
The plaintiff alleges the following facts in the amended complaint. The plaintiff was

transferred to MacDougall-Walker Correctional Institution in August 2015, after being regressed
to Phase I of the Security Risk Group Program. Defendant Mclain began making sexual gestures
and comments to the plaintiff. He also began requiring the plaintiff to undergo strip searches
before recreation and phone time. Defendant Mclain required the plaintiff to bend at the waist
and spread his buttocks instead of utilizing the normal procedure of squatting and coughing.
The plaintiff became uncomfortable with the comments. In early September 2015, he
submitted an inmate request to Unit Manager Rivera. For the next few weeks, the comments
stopped but the full strip searches continued. The plaintiff assumed that this change in conduct
was the result of defendant Rivera speaking to defendant Mclain.

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In October 2015, the situation worsened. Inmates in Phase I only shower three days per
week. Following a workout, the plaintiff partially covered his cell door window while he
washed himself at the sink. Defendant Mclain stopped at plaintiff’s cell and insisted that the
plaintiff uncover the window. He then made a suggestive comment about plaintiff’s lips and
walked away. The plaintiff again complained to defendant Rivera. The comments stopped for
the next six weeks.
On November 23, 2015, the plaintiff was exercising in his cell when defendant Mclain
toured the unit. Defendant Mclain commented that the plaintiff needed more protein and later,
when distributing food, gave the plaintiff an apple. Following the meal, which was eaten in the
cell, the plaintiff covered his cell door window to wash up in the sink. Defendant Mclain toured
the unit and ordered the plaintiff to remove the covering. When the plaintiff uncovered the
window, defendant Mclain made sexually suggestive comments about the plaintiff’s body. The
plaintiff re-covered the window and told defendant Mclain to go away.
That evening the plaintiff had a scheduled phone call. Defendant Simmons came to the
cell with another officer to escort the plaintiff to his call. The plaintiff and his cellmate were
ordered handcuffed and the plaintiff was escorted to the phone call. When defendant Simmons
was about to uncuff plaintiff’s cellmate, defendant Mclain stated that he wanted to search the
cell. Plaintiff’s cellmate was escorted to the showers for the duration of the search.
A tattoo gun was found in the cell. Defendant Danek was called to the housing unit. The
plaintiff admitted that the tattoo gun was his and received a disciplinary report for contraband.
The plaintiff and his cellmate were moved to another cell because a light in their cell was broken.
While property was being transferred to the new cell, the plaintiff was standing against the back
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wall of the new cell. Defendant Mclain was standing with his left hand against the plaintiff’s
chest. The plaintiff assumes that this was in accordance with department policy. Defendant
Mclain then grabbed the plaintiff’s genitals with his right hand and stated that the plaintiff should
have “made it easier,” ECF No. 10 at 21, ¶ 15, implying that the disciplinary report was issued
because the plaintiff failed to cooperate with defendant Mclain. The plaintiff reported the
conduct to defendant Danek, who treated it as a joke. The plaintiff requested preservation of
video of the officer in his cell and leaving it. That evening, the plaintiff submitted a request to
Deputy Warden Hines regarding sexual harassment.
On November 24, 2015, the plaintiff spoke to defendant Rivera about his issues with
defendant Mclain. That evening, defendant Mclain distributed the meals. When defendant
Mclain told the plaintiff to come and get his tray because it was special and would help him grow
strong, the plaintiff threw the food at defendant Mclain. The plaintiff hoped that this action
would result in creation of a separation profile to keep him away from defendant Mclain. Either
defendant Mclain or defendant Simmons closed the food trap. Defendant Mclain threatened to
beat the plaintiff when he entered the cell.
Defendants Anaya, Strange, and Mahoney arrived at the cell. When defendant Strange
asked who threw the food and why, the plaintiff explained what had happened the night before
and that he was trying to get a separation profile. Defendant Mahoney ordered the plaintiff to be
handcuffed and taken to restrictive housing. The plaintiff stated that he did not feel safe without
a camera present. Defendant Mahoney stated that no camera was necessary and began to spray a
chemical agent into the plaintiff’s cell. The plaintiff attempted to block the spray with his hands
and mattress. Defendant Simmons ripped the mattress while trying to pull it away from the
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plaintiff. The mattress became lodged in the food trap. Defendant Mahoney threatened to
physically assault the plaintiff when he arrived in restrictive housing. Defendant Anaya ordered
defendant Mahoney to calm down. He also ordered a camera operator to record the remainder of
the incident. The plaintiff was handcuffed and defendant Strange escorted him to restrictive
housing for decontamination. The plaintiff requested preservation of this recording.
The plaintiff was improperly decontaminated. He was subjected to a forceful strip search
and confined in in-cell restraints per order of defendants Anaya and Strange. Although
Department of Correction policy states that in-cell restraints should be used only to gain
compliance from acutely disruptive inmates, correctional staff routinely use in-cell restraints as
punishment whenever a supervisor is disobeyed.
The plaintiff was placed in a behavior observation cell that smelled of feces and urine.
The plaintiff later discovered that there were feces under the bed, and smeared on the walls and
window sill. There was urine all over the floor and blood on the sink and toilet. The cell was
very cold and the plaintiff was not permitted socks. When the plaintiff complained about the cell
conditions, defendant Mahoney stated that he could not smell anything and that the plaintiff did
not deserve better. Over the next few days, the plaintiff vomited several times from the smell, he
became sick whenever he ate and, when he left the cell, felt as if he had a fever for the next few
days. Plaintiff remained in the cell for sixty-four hours. During the entire time, the lights
remained on. The conditions prevented the plaintiff from performing his religious prayers.
When the plaintiff returned to his cell, he found that defendant Mclain was still assigned
to the housing unit. He requested a separation profile. Defendant Hines denied the request. The
plaintiff filed several inmate requests, grievances, and grievance appeals. Many of these
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documents did not reach their intended destinations. The plaintiff observed several of his
grievances in the trash in the office shared by defendant Rivera.
II.

Standard
When reviewing a motion to dismiss, the court accepts all allegations in the complaint as

true and draws all reasonable inferences in favor of the plaintiff. Cruz v. Gomez, 202 F.3d 593,
596 (2d Cir. 2000). The court need not, however, accept conclusory allegations. The case
should proceed only if the complaint alleges “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal,
556 U.S. 662, 681 (2009) (citing Twombly, 550 U.S. at 554-55). 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.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Even under this standard, however,
the court liberally construes a pro se complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir. 2008).
III.

Discussion
The defendants contend that the plaintiff fails to allege any constitutional claims that

warrant court involvement in prison administration. They contend that the injunctive relief
requested in the complaint is the epitome of court involvement in day-to-day prison
administration. The defendants also argue that all claims against them for damageS in their
official capacities are barred by the Eleventh Amendment. Finally, the defendants contend that
many of the plaintiff’s allegations fail to state cognizable claims for relief.
A.

Official Capacity Claims for Damages
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The defendants move to dismiss all claims for damages against them in their official
capacities. The Eleventh Amendment divests the district court of subject matter jurisdiction over
claims for money damages against state officials acting in their official capacities unless the state
has waived this immunity or Congress has abrogated it. See Kentucky v. Graham, 473 U.S. 159,
169 (1985). Section 1983 does not abrogate state sovereign immunity, see Quern v. Jordan, 440
U.S. 332, 343 (1979), and the plaintiff has provide no evidence that the state has waived
immunity.
In opposition to the motion to dismiss, the plaintiff states that he seeks damages from the
defendants in their individual capacities only. ECF No. 46-1 at 2, 4. As this distinction was not
included in the amended complaint and the plaintiff cannot amend his complaint through a
memorandum, the defendants’ motion to dismiss is granted as to any claims for damages against
the defendants in their official capacities. See Wright v. Ersnt & Young, LLP, 152 F.3d 169, 178
(2d Cir. 1998) (plaintiff cannot amend complaint in a memorandum).
B.

Requests for Injunctive Relief

In the amended complaint, the plaintiff seeks injunctive relief in the form of an order that
defendant Mclain stop harassing him and have no contact with him.3 ECF No. 10 at 29, ¶ 53.
The defendants move to dismiss the request for injunctive relief on the ground that it would
require the Court to become involved in the day-to-day administration of state correctional
facilities.
The defendants argue that the Court should defer to the expertise of prison officials

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He also seeks an order that defendants Maiorana, Millian, and Bennett stop manipulating the grievance
process. However, all claims against these three defendants have been dismissed.

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regarding the day-to-day operation of correctional facilities and not intrude absent a
constitutional violation. They refer the Court to Beard v. Banks, 548 U.S. 521, 529-30 (2006),
and Turner v. Safley, 482 U.S. 78, 84-85 (1987). These cases, however, involve challenges to
prison regulations. Beard, 548 U.S. at 522 (challenge to prison policy restricting access to
newspapers, magazines and photographs by inmates in most restrictive segregated housing unit);
Turner, 482 U.S. at 81 (challenging constitutionality of mail and marriage regulations).
Here, the plaintiff does not challenge the constitutionality of any prison regulations or
policies. Rather, he alleges that defendant Mclain sexually assaulted him and seeks a separation
order from defendant Mclain.4 The plaintiff does not seek expansive injunctive relief that would
disrupt prison administration as the inmates in Beard and Turner did. He seeks the same relief
that would have been afforded him if the Department of Correction had found that defendant
Mclain sexually assaulted him.
Further, to obtain the requested injunctive relief, the plaintiff must prevail on his claim
and demonstrate that he will be irreparably harmed should the relief be denied. The Court
cannot conclude, based only on the amended complaint, that the requested relief is not
warranted. The defendants’ motion to dismiss the claims for injunctive relief is denied.
C.

Failure to State a Claim

The defendants contend that many of the plaintiff’s allegations do not rise to the level of

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The defendants also contend that any injunctive relief based on the plaintiff’s claims against defendants
Hines, Danek, Anaya, Strange, Mahoney, and Simmons would require the Court to become involved in the day-today operation of prison facilities. A review of the prayer for relief in the amended complaint reveals no request for
injunctive relief relating to defendants Hines, Danek, Anaya, Strange, Mahoney, and Simmons. Thus, there is no
basis for this argument.

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a constitutional violation. Specifically, the defendants challenge the claims against defendants
Hines and Danek, and the excessive force and conditions of confinement claims against
defendants Anaya, Strange, Mahoney, and Simmons.
1.

Defendants Hines and Danek

In the Initial Review Order, the Court addressed the claims for deliberate indifference to
safety against defendants Hines and Danek. The Court concluded that the plaintiff’s allegation
that he informed both defendants about defendant Mclain’s actions but they took no, or
insufficient, action, was sufficient to show disregard for sexual harassment by prison guards.
The Court determined that the allegations were sufficient to state a plausible claim for deliberate
indifference to safety against both defendants. The Court also determined that the allegation was
sufficient to state a claim for supervisory liability against defendant Hines.
The defendants move to dismiss the deliberate indifference to safety claim against
defendant Danek on the ground that he did not learn of defendant Mclain’s actions until after
they occurred. Thus, defendant Danek could not intervene and prevent the harm that already had
occurred.
To state a claim for deliberate indifference to safety, the plaintiff must allege facts
showing that he was incarcerated under conditions posing a substantial risk of serious harm, and
that the defendants acted with deliberate indifference to that risk and the plaintiff’s safety.
Farmer v. Brennan, 511 U.S. 825, 836 (1994). The plaintiff must show that the defendants knew
of and disregarded a substantial risk of harm to his health or safety. Id. at 837. The defendants
must have been aware of the facts from which the inference can be drawn that a substantial risk
of serious harm exists, and the defendants must draw that inference. Id.
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The plaintiff alleges that supervisor defendant Danek arrived at the cell as defendant
Mcclain was leaving it. The plaintiff described defendant Mclain’s actions to defendant Danek
but his statements were not taken seriously. The sexual harassment continued later that evening.
Even one incident of improper sexual contact, if done without penological purpose, can support
an Eighth Amendment claim. Crawford v. Cuomo, 796 F.3d 252 257 (2d Cir. 2015). Although
the Second Circuit has not addressed this issue, other courts have determined that unwanted
sexual touching can form the basis of a deliberate indifference to safety or failure to protect
claim. See, e.g., Mulder v. Schuyler Cnty Sheriff, No. 14-CV-3274, 2015 WL 1188031, at *2
(C.D. Ill. Mar. 12, 2015) (allegation of unwanted sexual touching prevented court from ruling
out a constitutional claim for deliberate indifferent to a substantial risk of serious harm). In light
of the holding in Crawford, and the plaintiff’s allegations of continuing sexual harassment and
disregard for his complaint, the Court concludes that the plaintiff should be able to conduct
discovery regarding his claim against defendant Danek. The defendants’ motion to dismiss is
denied as to this claim.
The defendants also move to dismiss the supervisory liability claim against defendant
Hines. Supervisory liability may be based on several different actions. A supervisory official
may have directly participated in the alleged wrongful actions, failed to remedy the wrong after
being informed of the conduct, created a policy or custom that sanctioned unconstitutional
conduct or permitted a policy or practice to continue, been grossly negligent in supervising the
officer who committed the conduct, or failed to respond to information that unconstitutional acts
were occurring. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).
The defendants argue that, although the plaintiff alleges that he wrote to defendant Hines
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about the misconduct, he does not allege that he actually delivered the letter. Thus, the
defendants contend that defendant Hines lacked actual knowledge. Allegations that an inmate
sent a letter of complaint to a supervisory official are sufficient to state a plausible claim for
supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013).
Whether defendant Hines received the letter and had actual notice of the plaintiff’s claims are
questions better resolved at summary judgment after the plaintiff has had an opportunity to
conduct discovery on these issues. The defendants’ motion to dismiss is denied as to the
supervisory liability claim against defendant Hines.
2.

Excessive Force

The defendants also move to dismiss the plaintiff’s excessive force claim against
defendants Anaya, Mahoney, Strange and Simmons based on confinement on in-cell restraints in
a dirty cell. They do not challenge the excessive force claim based on deployment of a chemical
agent.
The issue on an excessive force claim is “whether force was applied in a good-faith effort
to maintain or restore discipline or maliciously and sadistically for the very purpose of causing
harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The court should consider factors
including “the need for application for force, the relationship between that force and the amount
of force used, the threat reasonably perceived by the responsible officials, and any efforts made
to temper the severity of a forceful response.” Id. at 7 (internal quotation marks and citation
omitted).
The defendants contend that placement on in-cell restraint status was warranted. The
plaintiff alleges, however, that he was no longer disruptive and complied with all orders when he
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was taken to restrictive housing. He also refers to Department of Correction directives stating
that in-cell restraints should be used on “acutely disruptive” inmates to gain compliance with
orders and not as a punishment. The defendants attach this directive to their second motion to
dismiss.5 Administrative Directive 6.5, section 8(A) provides that restraints are a form of
physical force used to prevent escape, prevent injury to self or others, prevent property damage,
ensure compliance with an order, and maintain order. The section specifically states that
“[p]hysical force shall not be used for the harassment or punishment of any person.” Defs.’
Mem., ECF No. 35-2 at 7.
The directive states that restraints are a form of physical force. The plaintiff alleges that
this use of force was intended to punish him and not for any permitted purpose. The Court has
determined that the plaintiff’s allegations stated a plausible claim. The defendants argue that the
plaintiff cannot show that the defendants acted maliciously and sadistically. That determination
cannot be made on the plaintiff’s amended complaint alone. The defendants’ motion to dismiss
is denied as to the excessive force claim.
The defendants also argue that the plaintiff’s allegations regarding the conditions in the
cell in which he was confined in in-cell restraints and fail to support an Eighth Amendment claim
for unconstitutional conditions of confinement. A review of the prayer for relief in the amended
complaint indicates that the plaintiff is not pursuing a separate conditions of confinement claim.
If, however, the Court were to construe the amended complaint to include a conditions of

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The Court may take judicial notice of prison directives when considering a motion to dismiss. See Lurry
v. Ford, No. 3:13-CV-1157 MPS, 2014 WL 859270, at *2 (D. Conn. Mar. 5, 2014) (citing Christman v. Skinner,
468 F.2d 723, 726 (2d Cir. 1972)).

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confinement claim, the defendants’ motion to dismiss that claim should be denied.
The Eighth Amendment “does not mandate comfortable prisons.” Rhodes v. Chapman,
452 U.S. 337, 349 (1981). However, prisoners are entitled to “humane conditions of
confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state a claim for
unconstitutional conditions of confinement, the plaintiff must allege facts supporting an objective
component, that the conditions constitute a “sufficiently serious … denial of the minimal
civilized measure of life’s necessities” and a subjective component, that the defendants
possessed a “sufficiently culpable state of mind.” Id. at 834 (internal quotation marks and
citations omitted).
The Second Circuit has held that confinement in an unsanitary cell exposed to human
waste supports an unconstitutional conditions of confinement claim. In Willey v. Kirkpatrick,
801 F.3d 51 (2d Cir. 2015), the district court had dismissed claims relating to one period of
confinement in unsanitary conditions and failed to address two other periods of confinement.
The district court rejected the claim because the prisoner had not alleged that human waste
overflowed from his toilet into the cell and did not claim that he suffered any injury from the
malodorous atmosphere. The Second Circuit questioned whether living exposed to excrement
for days denied an inmate the minimal civilized measure of life’s necessities. Id. at 66-67 (citing
cases and noting circuit split where exposure to waste lasted three-to-four days). The Second
Circuit rejected any bright-line durational requirement for exposure to unsanitary conditions and
any “minimal level of grotesquerie.” Id. at 68. See also Gaston v. Coughlin, 249 F.3d 156, 16162 (2d Cir. 2001) (reinstating Eighth Amendment claim for exposure to human waste for several
days).
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In evaluating these claims, the court must consider the duration and severity of the
exposure to human waste. That the prisoner suffered injury as a result of the exposure may
support the seriousness of the exposure but is not a required element of the claim. Willey, 801
F.3d at 68. Applying this standard, the Court cannot conclude as a matter of law that the
conditions described by the plaintiff fail to state a plausible conditions of confinement claim.
IV.

Conclusion
Plaintiff’s second amended complaint [ECF No. 41] was filed without consent or leave

of court. The Clerk is directed to STRIKE the second amended complaint from the docket.
Defendants’ motion to dismiss [ECF Nos. 34] is GRANTED as to any claims for
damages against the defendants in their official capacities and DENIED in all other respects.
Defendants’ motion to dismiss [ECF Nos. 35] is redundant and is hereby DENIED.
SO ORDERED this 20th day of December 2016 at Hartford, Connecticut.
/s/
Michael P. Shea
United States District Judge

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