Solek v. Naqvi et al

Filing 20

INITIAL REVIEW ORDER: For the reasons set forth in the attached ruling, the Court enters the following orders:(1) The due process claims against defendants Massoia, Richardson, Chapdelaine, Terp, and L'Heureux are DISMISSED pursuant to 28 U. S.C. § 1915A(b)(1). The case will proceed on the claims for deliberate indifference against defendant Naqvi and for use of excessive force against defendant Danek. (2) The Clerk shall verify the current work address of defendant Danek with t he Department of Correction Office of Legal Affairs, mail a waiver of service of process request packet to him at the confirmed address within twenty-one (21) days of this Order, and report to the Court on the status of the waiver request on the thir ty-fifth (35) day after mailing. If the defendant fails to return the waiver request, the Clerk shall make arrangements for in-person service by the U.S. Marshals Service on the defendant in his individual capacity, and the defendant shall be require d to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).(3) The Clerk shall send a courtesy copy of the Amended Complaint and this Order to the Connecticut Attorney General and the Department of Correction Offic e of Legal Affairs.(4) The defendants shall file their response to the Amended Complaint, either an answer or motion to dismiss, within sixty (60) days from the date of the summons. If they choose to file an answer, they shall admit or deny the a llegations and respond to the cognizable claims recited above. They also may include any and all additional defenses permitted by the Federal Rules.(5) Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be completed with in seven months (210 days) from the date of this Order. Discovery requests need not be filed with the court.(6) All motions for summary judgment shall be filed within eight months (240 days) from the date of this Order.(7) Pursuant to Local C ivil 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.(8 ) If plaintiff changes his address at any time during the litigation of this case, Local Court Rule 83.1(c)2 provides that the plaintiff MUST notify the court. Failure to do so can result in the dismissal of the case. Plaintiff must give notice of a new address even if he is incarcerated. 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. Plaintiff should also notify the defendant or the attorney for the defendant of his new address. (9) Plaintiff shall utilize the Prisoner Efiling Program when filing documents in this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 12/23/2016. (Levenson, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TIMOTHY SOLEK,
Plaintiff,
v.

No. 3:16-cv-947 (JAM)

DR. NAQVI, et al.,
Defendants.
INITIAL REVIEW ORDER RE AMENDED COMPLAINT
Plaintiff Timothy Solek is a prisoner in the custody of the Connecticut Department of
Correction. On June 16, 2016, plaintiff filed a complaint pro se and in forma pauperis under 42
U.S.C. § 1983. On November 28, 2016, I dismissed all of plaintiff’s claims pursuant to 28 U.S.C.
§ 1915A, except his claim against defendant Dr. Naqvi for deliberate indifference to a serious
medical need. The dismissal was without prejudice to filing an amended complaint repleading
some of the dismissed claims. Plaintiff filed an amended complaint on December 12, 2016. For
the reasons set forth below, I conclude that the amended complaint contains a cognizable claim
against defendant Danek for excessive force. This claim will be allowed to proceed, along with
the deliberate indifference claim against Dr. Naqvi. The remainder of plaintiff’s claims are
dismissed pursuant to 28 U.S.C. § 1915A.
BACKGROUND
In the amended complaint, plaintiff names seven defendants: Dr. Naqvi, Lieutenant
Danek, M.P. Terp, Correctional Treatment Officer Massoia, A.P.R.N. Cynthia L’Heureux,
Disciplinary Hearing Officer Lieutenant Richardson, and Warden Carol Chapdelaine.
Defendants Naqvi, Danek, Massoia, and L’Heureux are named in their individual capacities.
Defendants Terp, Richardson, and Chapdelaine are named in their individual and official

capacities.
The following allegations from plaintiff’s amended complaint are accepted as true for
purposes of the Court’s initial review. On June 24, 2014, defendant Danek responded to a fight
between plaintiff and his cellmate. When defendant Danek arrived, plaintiff was lying face down
on the floor with his hands cuffed behind his back. Correctional Officer Rivenburgh had
deployed a chemical agent before defendant Danek arrived. Doc. #18 at 5. Although plaintiff had
been secured and was not resisting, defendant Danek rushed into the cell, told plaintiff to stop
resisting, and sprayed a chemical agent into the cuts on plaintiff’s face. Id. at 7.
Correctional Officer Canfield arrived at the cell at 4:42 p.m. and video recorded
plaintiff’s escort to the medical unit to have his injuries treated. The recording included
plaintiff’s strip search and placement on suicide watch. Defendant Danek directed that the
recording stop at 5:05 p.m. While being escorted to the medical unit, plaintiff told defendant
Danek that his cellmate had hit him in the left eye with a sock filled with batteries. Ibid.
Nurse Doe cleaned and treated the cuts on plaintiff’s face and called the doctor. Dr.
Naqvi prescribed an ice pack and neurological checks every four hours for twenty-four hours; he
did not order an x-ray, MRI, or other additional treatment. On June 26, 2014, plaintiff was
moved from suicide watch in the medical unit to segregation, where he remained until July 3,
2014. Plaintiff was then transferred to Corrigan Correctional Institution. During plaintiff’s time
in the medical unit and segregation, Dr. Naqvi provided no additional treatment for plaintiff’s
injuries. Id. at 8.
On July 26, 2014, Nurse Walters noticed a hard nodule above plaintiff’s left eye. Id. at
10. On July 30, 2014, defendant L’Heureux determined that the nodule was a cyst; she ordered
x-rays and prescribed Motrin for pain. The x-rays showed no left orbital rim fracture but did not
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indicate the composition of the nodule. Id. at 11. The nodule is believed to be a calcium deposit
caused when defendant Danek sprayed the chemical agent into an open cut. Id. at 8.
Plaintiff received a disciplinary report for fighting, to which he pled not guilty. Plaintiff
selected defendant Massoia as his advocate. Defendant Massoia took plaintiff’s statement and
said he would speak with plaintiff after he reviewed the evidence. He did not do so. At the
disciplinary hearing, plaintiff complained that defendant Massoia failed to perform his duties as
advocate. Defendant Richardson appointed a substitute advocate but denied a continuance.
Plaintiff was found guilty because he presented no evidence at the hearing. The guilty finding
was upheld on appeal. Id. at 8–9.
Plaintiff filed a grievance against Dr. Naqvi and two nurses for failing to treat his eye.
Defendant Terp, who is not a Health Services Administrator, reviewed the grievance. Defendant
Terp stated that the Department of Correction would not acknowledge any failure of medical
care provided at a different correctional facility and would not order an MRI because the test
would be of a low diagnostic value. Id. at 11. On October 20, 2014, defendant L’Heureux
informed plaintiff that the Utilization Review Committee had denied further treatment. Id. at 12.
DISCUSSION
Pursuant to 28 U.S.C. § 1915A(a), 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. The Court must accept as true all factual matters alleged in a complaint, although a
complaint may not survive unless its factual recitations state a claim to relief that is plausible on
its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770
F.3d 170, 177 (2d Cir. 2014) (same). Nevertheless, it is well-established that “pro se complaints
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‘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 Tracy v. Freshwater, 623 F.3d 90, 101–02
(2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
The Court construes plaintiff’s amended complaint to assert four claims: use of excessive
force by defendant Danek; deliberate indifference to a serious medical need by defendant Dr.
Naqvi; denial of due process by defendants Richardson, Chapdelaine, and L’Heureux in
connection with the disciplinary hearing; and denial of due process by defendants Terp and
Massoia in connection with the handling of plaintiff’s grievances. For the reasons explained in
my prior Initial Review Order (Doc. #14), the claim against Dr. Naqvi will be allowed to
proceed. Plaintiff’s other three claims are analyzed below.
Excessive Force
Plaintiff alleges that defendant Danek used excessive force against him by deploying a
chemical agent into plaintiff’s open facial wounds after plaintiff had been handcuffed and
subdued. The use of excessive force against a prisoner may constitute cruel and unusual
punishment in violation of the Eighth Amendment. See Hudson v. MacMillian, 503 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).
Plaintiff alleges that defendant Danek sprayed the chemical agent after plaintiff was
handcuffed and when he was not resisting. This suggests that the force was not applied to
maintain or restore discipline. Plaintiff’s allegations are sufficient to state a plausible claim for
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use of excessive force against defendant Danek. See, e.g., Tracy, 623 F.3d at 98 (concluding that
“a reasonable juror could find that the use of pepper spray deployed mere inches away from the
face of a defendant already in handcuffs and offering no further active resistance constituted an
unreasonable use of force”).
Denial of Due Process
In connection with the disciplinary hearing, plaintiff contends that he was denied due
process when defendant Massoia failed to provide effective assistance of an advocate, defendant
Richardson denied a continuance, and defendant Chapdelaine denied his appeal. To state a claim
for denial of due process in connection with a prison disciplinary hearing, a plaintiff must show
that he had a protected liberty interest and that he was denied that interest without being afforded
due process of law. A plaintiff has a protected liberty interest only if the state has created a
liberty interest in a statute or regulation, and deprivation of that interest has cause him to suffer
an “atypical and significant hardship in relation to the ordinary incidents of prison life.” Sandin
v. Conner, 515 U.S. 472, 484 (1995). To make this determination, the Court must examine the
actual punishment received. See Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004). The Court
considers both the conditions and duration of the punishment. Id.
The Court dismissed plaintiff’s due process claims in the original complaint because
plaintiff had not indicated what punishment he received and, therefore, the Court was unable to
determine whether plaintiff suffered an atypical and significant hardship. The Court permitted
plaintiff to amend this claim provided he could allege facts showing that he suffered an atypical
and significant hardship, as well as the other elements for a due process claim in connection with
a prison disciplinary hearing. See Doc. #14 at 6.
The incident report attached to plaintiff’s amended complaint indicates that he received a
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punishment of 10 days of punitive segregation, 30 days loss of recreation, 60 days loss of phone,
and 10 days forfeiture of risk reduction earned credit. See Doc. #18-1 at 22. These sanctions do
not constitute an atypical and significant hardship. See Sandin, 515 U.S. at 485–86 (30 days of
confinement in restrictive housing unit did not implicate constitutional liberty interest); Lewis v.
Sieminski, 2010 WL 3827991, at *6 (D. Conn. 2010) (noting that decisions in the Second Circuit
are unanimous that segregated housing unit confinement of 30 days or less is not “atypical or
significant hardship” under Sandin); Hunnicutt v. Kitt, 2012 WL 1247268, at *5 (D. Conn. 2012)
(no atypical and significant hardship where plaintiff received, on each of three disciplinary
charges, 15 days of punitive segregation followed by 90 days loss of phone and commissary
privileges). Because plaintiff’s punishment does not constitute an atypical and significant
hardship, plaintiff’s due process claims relating to the disciplinary hearing are dismissed
pursuant to 28 U.S.C. § 1915A(b)(1).
Plaintiff also asserts due process claims against defendants Terp and L’Heureux, alleging
that the denial and improper handling of his grievances violated his right to due process. “It is
well-established that inmate grievance programs created by state law are not required by the
Constitution and consequently allegations that prison officials violated those procedures does not
give rise to a cognizable § 1983 claim.” Brown v. Semple, 2016 WL 4408985, at *4 (D. Conn.
2016). In addition, “prisoners do not have a due process right to a thorough investigation of
grievances.” Ibid. Accordingly, plaintiff’s due process claims against defendants Terp and
L’Heureux are dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
CONCLUSION
In accordance with the foregoing analysis, the Court enters the following orders:
(1)

The due process claims against defendants Massoia, Richardson, Chapdelaine,
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Terp, and L’Heureux are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). The case will
proceed on the claims for deliberate indifference against defendant Naqvi and for use of
excessive force against defendant Danek.
(2)

The Clerk shall verify the current work address of defendant Danek with the

Department of Correction Office of Legal Affairs, mail a waiver of service of process request
packet to him at the confirmed address within twenty-one (21) days of this Order, and report to
the Court on the status of the waiver request on the thirty-fifth (35) day after mailing. If the
defendant fails to return the waiver request, the Clerk shall make arrangements for in-person
service by the U.S. Marshals Service on the 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 send a courtesy copy of the Amended Complaint and this Order

to the Connecticut Attorney General and the Department of Correction Office of Legal Affairs.
(4)

The defendants shall file their response to the Amended Complaint, either an

answer or motion to dismiss, within sixty (60) days from the date of the summons. 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.
(5)

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.
(6)

All motions for summary judgment shall be filed within eight months (240 days)

from the date of this Order.
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(7)

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.
(8)

If plaintiff changes his address at any time during the litigation of this case, Local

Court Rule 83.1(c)2 provides that the plaintiff MUST notify the court. Failure to do so can result
in the dismissal of the case. Plaintiff must give notice of a new address even if he is incarcerated.
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. Plaintiff should also notify the defendant or the attorney for the defendant of
his new address.
(9)

Plaintiff shall utilize the Prisoner Efiling Program when filing documents in this

case.
It is so ordered.
Dated at New Haven this 23d day of December 2016.
/s/Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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