Melvin v. Connecticut et al
ORDER Dismissing Amended Complaint With Leave to Amend. Please see attached Ruling & Order for details. Plaintiff may file a second amended complaint on or before October 15, 2017. Signed by Judge Robert N. Chatigny on 9/1/17.(Jones, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STATE OF CONNECTICUT,
: Case No. 3:16-cv-537(RNC)
RULING AND ORDER
In response to the initial review order dismissing the
complaint in this case, plaintiff has filed an amended complaint
eliminating some claims and defendants.
The allegations of the
amended complaint, construed liberally to raise the strongest
arguments they suggest, raise the possibility that plaintiff may
have a potentially valid claim for damages under 42 U.S.C. §
1983, specifically, a Fourteenth Amendment substantive due
process claim against one or more parole officials for requiring
him to reside as an in-patient at a drug treatment facility
although they knew he would contract a serious illness at the
facility and be deprived of adequate medical care.
Ramirez, 400 F.3d 105, 106 (2d Cir. 2005).
See Jacobs v.
The allegations in
the amended complaint fall short of stating a plausible claim
under Jacobs because the allegations are merely conclusory in
nature (in other words, unsupported by specific factual
allegations required to state a plausible claim).
be given an opportunity to file a second amended complaint
alleging specific facts in support of a substantive due process
claim under Jacobs.
Plaintiff should bear in mind that a parole
official who orders a parolee to reside at a drug treatment
facility as a condition of parole may be entitled to absolute
immunity under § 1983 depending on whether the official was
performing a quasi-adjudicatory function rather than an
(2d Cir. 2016).
See Victory v. Pataki, 814 F.3d 47, 65-67
To be timely, the second amended complaint must
be filed on or before October 15, 2017.
All other § 1983 claims
in the amended complaint are dismissed without leave to amend.
To the extent the amended complaint can be construed to allege
claims under state law, the Court declines to exercise
supplemental jurisdiction over any such claims.
The amended complaint alleges the following.
2009, plaintiff was sentenced in state court to a term of
imprisonment of three years to be followed by a five-year term of
On February 3, 2014, while he was on special
parole, he was ordered to participate in drug treatment at Daytop
at the “express direction” of the Parole Board.
participation in the program was a condition of his special
While an in-patient at Daytop, plaintiff was exposed to
methecillin sensitive staphylococcus aureus (MSSA) resulting in
Daytop had no screening for communicable diseases
and any infected person could walk in off the street.
was exposed to other residents at Daytop who should have been
Plaintiff was ill at Daytop from February 10, 2014, through
early March 2014.
He was denied sick bed status for most of that
In response to his requests for sick bed status, defendant
Kushpinski threatened to report that he was refusing programs.
Plaintiff filed grievances about bedbug bites and his illness.
Daytop Program Director Lead and Nurse Supervisor Linette failed
to respond to the grievances.
Plaintiff told Dr. Shi about his
symptoms of oscillating fever, vomiting and chest pain but she
“deliberately” failed to order a necessary pulmonary examination.
As a result, plaintiff lapsed into septic shock with “lung
effusions, abscess and collapse.”
Daytop Program Technician Alice “sadistically” confiscated
an article of plaintiff’s winter clothing even though he was ill.
When he objected, she falsely reported to Program Director Lead
that he was filing a lawsuit against Daytop.
In fact, he was
merely trying to file a change of address notice in a unrelated
case, Melvin v. Miller, 3:09-CV-1612 (RNC).
believed the notice was a complaint against Daytop and, as a
result, the notice was “disregarded” and not mailed.
March 2014, when plaintiff left Daytop to obtain medical care, a
second change of address notice was discarded.
after plaintiff left Daytop, someone there destroyed his personal
property, including legal materials.
Plaintiff was physically assaulted by another resident at
After the assault, Daytop Counselor Supervisor Greg
erroneously reported to the Parole Board that plaintiff had
assaulted the other resident.
returned to prison.
As a result, plaintiff was
A discharge summary was prepared at Daytop
by Counselor Williams.
The discharge summary repeated false
statements contained in a report fabricated by Daytop Counselor
Diaz indicating that plaintiff admitted to a history of substance
abuse, psychiatric issues and gun use.
The discharge summary
stated that plaintiff was resistant to treatment and had
difficulty adjusting at Daytop.
a “homicidal history.”
It also made vague references to
Parole Officer Runlette subsequently
initiated a parole revocation proceeding, which resulted in the
revocation of plaintiff’s special parole.
Parole Board Chair Tindall “knew or should have known” that
as an in-patient at Daytop, plaintiff would be subjected to the
unsafe living conditions and mistreatment he alleges.
management was motivated by its “single-minded, greed-filled deal
to garner program fee payments from state insurance coffers.”
And the staff at Daytop was “inherently inept.”
The Parole Board
— including Chairs Tindall and Guiles and members Ireland,
Smayda, and Berry — abused its discretion in revoking plaintiff’s
Under 28 U.S.C. § 1915A, courts are required to review a
prisoner’s complaint against government entities and employees
and dismiss any part of the complaint that is frivolous or
malicious or fails to state a claim on which relief may be
A complaint must plead “enough facts to state a claim
to relief that is plausible on its face,”
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), and “allow the court to draw
the reasonable inference that the defendant is liable for the
Ashcroft v. Iqbal, 556 U.S. 662, 678
In reviewing a pro se complaint, a court must assume the
truth of the allegations and interpret them liberally to “raise
the strongest arguments [they] suggest.”
F.3d 636, 639 (2d Cir. 2007).
Abbas v. Dixon, 480
Pro se plaintiffs are given an
opportunity to file an amended complaint “unless the court can
rule out any possibility, however unlikely it might be, that an
amended complaint would succeed in stating a claim.”
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
Section 1983 provides that “[e]very person who, under color
of any statute, ordinance, regulation, custom or usage of any
State . . . subjects or causes to be subjected, any citizen of
the United States . . . to the deprivation of any rights . . .
secured by the Constitution and laws shall be liable to the party
42 U.S.C. § 1983.
In order to state a claim on which
relief may be granted under § 1983, a complaint must satisfy two
essential requirements: (1) the conduct complained of must have
been committed by a person acting “under color of state law”; and
(2) the conduct complained of must have violated a right secured
to the plaintiff by federal law.
545, 547 (2d Cir. 1994).
See Pitchell v. Callan, 13 F.3d
In this case, the allegations against
the Daytop defendants do not satisfy the first requirement and
the allegations against the Parole Board defendants do not
satisfy the second requirement.
Section 1983 provides a remedy for deprivation of a federal
right only when “the party charged with the deprivation [is] a
person who may fairly be said to be a state actor.”
Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 264 (2d
Cir. 2014) (citations omitted).
The statute does not apply to
“merely private conduct, no matter how discriminatory or
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 560 U.S. 40, 49-
50 (1999) (citations omitted).
The Daytop defendants are not
state actors under the circumstances plaintiff alleges or
conceivably could allege.
For this reason, the amended complaint
fails to state a claim for relief under § 1983 against the Daytop
defendants and all claims against these defendants are dismissed
without leave to amend.
A person employed by a nonpublic entity such as Daytop may
be liable under § 1983 only if his or her actions meet one of
three tests for determining whether a person’s actions are
attributable to the state:
1. The compulsion test: the entity acts pursuant to the
coercive power of the state or is controlled by the
state, 2. The public function test: the entity has been
delegated a public function by the state, or, 3. The
joint action test or close nexus test: the state
provides significant encouragement to the entity, the
entity is a willful participant in joint activity with
the state, or the entity's functions are entwined with
Hollander v. Copacabana Nightclub, 624 F.3d 30, 34 (2d Cir. 2010)
(quotations and citations omitted).
None of these tests is satisfied here.
With regard to the
compulsion test, the amended complaint alleges that plaintiff was
ordered by the state to enter Daytop’s residential drug treatment
program, but it does not allege that the program was controlled
by the state.
Even if plaintiff were to amend the complaint to
allege that Daytop and its employees were licensed and regulated
by the state, the compulsion test would not be satisfied.
Cranley v. Nat'l Life Ins. Co. of Vermont, 318 F.3d 105, 112 (2d
Cir. 2003) (“[C]onduct by a private entity is not fairly
attributable to the state merely because the private entity is a
business subject to extensive state regulation or ‘affected with
the public interest.’” (quoting Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 353 (1974)).
Under the public function test, the actions of employees of
a private drug rehabilitation facility may be attributed to the
state if the plaintiff was confined at the facility pursuant to
an alternative-to-incarceration program.
See Johnson v. White,
No. 06CIV2540, 2010 WL 3958842, at *4 (S.D.N.Y. Sept. 9, 2010)
(finding state action because treatment facility was “fulfilling
the role” of the state department of correctional services); see
also Wilson v. Phoneix House, 2011 WL 3273179, at *3 (S.D.N.Y.
2011) (finding state action under the nexus test).
That is not
so if the individual resides at the facility as a condition of
“The provision of transitional housing to former inmates
under parole supervision is not a function that has traditionally
been the exclusive prerogative of the state.”
Byng v. Delta
Recovery Servs., LLC, No. 6:13-CV-733 MAD/ATB, 2013 WL 3897485,
at *9 (N.D.N.Y. July 29, 2013), aff'd, 568 F. App'x 65, 66 (2d
Accordingly, courts have consistently held that drug
treatment facilities that treat individuals pursuant to a
condition of parole are not performing a public function.
Byng, 568 Fed. App’x at 66 (affirming dismissal of claims against
residential substance abuse program plaintiff parolee was ordered
to attend); Smith v Devline, 239 Fed. App’x 735, 737 (3d Cir.
2007) (same); Justice v. King, No. 08-CV-6417-FPG, 2015 WL
1433303, at *19 (W.D.N.Y. 2015) (collecting district court cases
in the Second Circuit); cf. Gross v. Samudio, 630 F. App'x 772,
778 (10th Cir. 2015) (dismissing claim against sex offender
treatment program parolee was ordered to attend).
With regard to the joint action or close nexus test,
plaintiff alleges that the Parole Board ordered him to attend
Daytop’s program and Daytop reported his program participation
status to the Parole Board.
But the joint action or close nexus
test requires more: the conduct complained of must involve
“significant encouragement” by the state, “willful participation”
in state action by the entity, or “entwining” of the actions of
the entity and the state.
See Hollander, 624 F.3d at 34.
Plaintiff alleges that Parole Board Chair Tindall “knew or should
have known” that Daytop and its employees would violate his
However, he does not allege that any state actor
directed or encouraged the alleged violations or that Daytop
employees were acting pursuant to state policy.
See Vaughn v.
Phoenix House Programs of New York, No. 14-CV-3918 RA, 2015 WL
5671902, at *5 (S.D.N.Y. Sept. 25, 2015) (dismissing claim
against drug treatment program where its “sole function was to
provide drug treatment and . . . the terms of that treatment were
not directed, monitored, or significantly encouraged by the
The amended complaint includes allegations of a conspiracy.
It is unclear whether the alleged conspiracy involved both
parole officials and Daytop personnel or Daytop personnel only.
In either case, the allegations in the amended complaint are
insufficient to support a claim that Daytop or its employees were
To state a claim for conspiracy between a state
actor and a private party under § 1983, a complaint must allege
“(1) an agreement between [the] state actor and [the] private
party; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that goal.”
Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir.
The amended complaint does not plausibly allege an
agreement between the Parole Board defendants and the Daytop
defendants to act in concert to violate plaintiff’s
Because the allegations of the amended complaint regarding
the conduct of Daytop and its employees do not satisfy the state
action requirement, all § 1983 claims against these defendants
Under the case law just discussed, plaintiff
cannot plead a plausible claim that Daytop and its employees were
Accordingly, plaintiff will not be given an
opportunity to file a second amended complaint against these
See Byng, 568 Fed. Appx. at 66 (affirming district
court’s dismissal without leave to amend under 28 U.S.C. § 1915A
when district court found substance abuse program was not a state
Parole Board Defendants
Claims Based On Unsafe Conditions at Daytop
Plaintiff seeks to recover money damages under § 1983
against the Parole Board, Parole Board Chairs Tindall and Guiles,
other Board Members and Parole Officer Runlette for the various
wrongs he allegedly suffered at Daytop.
As discussed above, the
allegations in the amended complaint, liberally construed to
raise the strongest arguments they suggest, raise the possibility
that plaintiff may have a valid claim under the Due Process
Clause of the Fourteenth Amendment similar to the claim in Jacobs
v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005), on the ground that
he was required to reside at Daytop as a condition of his special
parole even though parole officials knew he would contract a
serious illness and be deprived of adequate medical care.1
Plaintiff will be given leave to file a second amended complaint
alleging a violation of his right to substantive due process
All other claims against the Parole Board
defendants under § 1983 are dismissed without leave to amend.
In addition to the Fourteenth Amendment, the amended
complaint invokes the First, Fourth, Fifth, Sixth and Eighth
Amendments. However, the allegations of the amended complaint do
not suggest that plaintiff has a potentially valid claim under
any of these other amendments.
In Jacobs, a parolee brought an action under § 1983 alleging
that his parole officers violated his civil rights “by paroling
him to his mother’s unsafe and unsanitary residence [and]
refusing his request to relocate to a homeless shelter.” 400 F.3d
The Court of Appeals held that this claim should not
have been dismissed because, accepting the plaintiff’s
allegations as true, the state had “effectively compelled him to
live in unsafe conditions” in violation of his right to
substantive due process under DeShaney v. Winnebago Cty. Dept. of
Social Servs., 489 U.S. 189 (1989).
See Jacobs, 400 F.3d at 107.
To state a claim for relief under Jacobs, plaintiff must
allege conduct so arbitrary and oppressive as to shock the
See Davis v. McCleary, 2017 WL 2266856,*4 (E.D.N.Y.
May 23, 2017)(dismissing parolee’s substantive due process claim
for failure to provide medical care and requiring parolee to live
in unsafe environment).
Plaintiff alleges that Parole Board Chair Tindall “knew or
should have known” that he would be exposed to MSSA at Daytop and
Daytop employees would fail to provide him with adequate medical
Plaintiff’s allegations regarding what Tindall “should
have known” do not state a claim for relief under Jacobs because
negligently inflicted harm does not violate the Due Process
See Davis, 2017 WL 2266856, at *4 (citing Cty. of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).
allegations that Tindall “knew” he would get sick at Daytop and
be deprived of adequate medical care yet still required him to go
there as a condition of his parole suggest the possibility of a
potentially valid substantive due process claim under Jacobs.
discussed above, however, a complaint must allege enough facts to
support a plausible claim and permit the court to draw the
reasonable inference that the defendant is liable for the alleged
Merely alleging that Tindall “knew” what would
happen at Daytop is insufficient to provide a basis for such a
In addition, if Tindall was performing a
quasi-adjudicatory function, rather than an administrative one,
any claim would be barred by absolute immunity under § 1983.
Victory, 814 F.3d at 65-67.
Revocation of Parole
Plaintiff seeks damages under § 1983 on the ground that the
revocation of his parole was unlawful.
dismissed for two reasons.
This claim must be
Under Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), if a claim under § 1983 “would necessarily imply
the invalidity of [a defendant’s] conviction or sentence,” the
plaintiff must allege that the conviction or sentence has been
Heck prevents plaintiff from seeking damages
under § 1983 based on the revocation of his parole unless and
until the parole revocation has been declared invalid by a state
See Lee v. Donnaruma, 63 Fed. App’x 39, 41 (2d Cir.
In addition, parole officials are entitled to absolute
immunity under section 1983 when they perform a quasiadjudicatory function in deciding to grant, deny or revoke
See Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).
In light of this absolute immunity, plaintiff’s unlawful
revocation of parole claim will be dismissed without leave to
Accordingly, plaintiff will be given an opportunity to file
a second amended complaint alleging a § 1983 claim for damages
based on a violation of his Fourteenth Amendment right to
substantive due process under Jacobs.
To state a claim for
relief as to any defendant named in the second amended complaint,
plaintiff must plead specific facts permitting a reasonable
inference that the named defendant required him to reside at
If plaintiff wishes to challenge the revocation of his
parole, he must file a petition for writ of habeas corpus in
state court. See Hanton v. Byrd, No. CV064020174, 2009 WL
3739379 (Conn. Super. Ct. Oct. 7, 2009).
Daytop as a condition of his parole although he knew plaintiff
would suffer serious harm.
Unless this showing is made with
regard to a named defendant, the second amended complaint as to
that defendant will be dismissed without leave to amend.
Plaintiff should bear in mind that absolute immunity bars claims
under § 1983 based on conduct by a parole official performing a
To be timely, the second amended
complaint must be filed on or before October 15, 2017. If no
second amended complaint is filed, the action will be dismissed.
All other claims under § 1983 are dismissed.
This dismissal order does not apply to any claims the
plaintiff might have under state law.
To the extent plaintiff’s
allegations can be construed as attempting to state a claim under
state law, the Court declines to exercise supplemental
jurisdiction over any such claim.
So ordered this 1st day of September 2017.
Robert N. Chatigny
United States District Judge
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