Harvin et al v. Chapdelaine et al

Filing 41

ORDER denying 35 Motion for Extension of Time and denying 32 Motion to Add New Defendants. Order construing 38 Motion as a Motion to Amend the Complaint to Add New Defendants. The Clerk of the Court is directed to docket the Joint Motion , ECF No. 38, as an Amended Complaint, and add the Town of Suffield, Connecticut, First Selectman of the Town of Suffield Melissa Mack and a corporation called SLOAN as defendants in this case. As the Court explains, however, all of the claims in this case must be dismissed. This case will, therefore, be dismissed in its entirety and judgment entered in favor of the Defendants and New Defendants. Signed by Judge Victor A. Bolden on 8/29/2017. (Giammatteo, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MARCUS HARVIN, et al.,
Plaintiffs,
v.
CAROL CHAPDELAINE, et al.,
Defendants.

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Case No. 3:16-cv-1616 (VAB)

RULING AND ORDER
Marcus T. Harvin, Nirone Hutton, Jose Ramos and Cordell L. Woolfolk (collectively,
“Plaintiffs”), were each confined at the MacDougall Correctional Institution in Suffield,
Connecticut (“MacDougall”) when they initiated this action on September 26, 2016. ECF No. 1.
They bring this action pro se and in forma pauperis under 28 U.S.C. § 1915 against Warden
Carol Chapdelaine, Maintenance Supervisor Street, Commissioner Semple, Counselor
Supervisor Davis and the Royal Flush company (collectively, “Defendants”).
On December 9, 2016, the Court issued an order noting that, given that all of the specific
events Plaintiffs alleged in the Complaint occurred between September 9, 2016 and September
13, 2016, it was not possible for Plaintiffs to have exhausted their administrative remedies before
filing the Complaint, which each of the Plaintiffs signed between September 12, 2016 and
September 15, 2016, before the Court received and filed the Complaint on September 26, 20161.
See Order at 7-9, ECF No. 30. As the Court’s previous order explained, before an incarcerated
plaintiff may bring any federal lawsuit regarding “prison conditions under [42 U.S.C. § 1983] or

1

As the Court explained in its previous order, because of the amount of time that the State of Connecticut
Department of Correction has to respond to inmate grievances at each level of the administrative proceedings
available to inmates, full exhaustion of the administrative procedures would likely take at least 75 business days.
See Order at 2-5, ECF No. 30.

any other Federal law,” he or she must fully exhaust available administrative remedies. 42
U.S.C. § 1997e(a). Although it was apparent from the face of the Complaint that the Plaintiffs
could not have met this requirement before filing the Complaint, the Court nonetheless gave
Plaintiffs an opportunity to file a response regarding whether they had fully exhausted their
administrative remedies. Order at 13.
Plaintiffs have now filed responses to the Court’s previous order. ECF No. 33 (Mr.
Hutton); ECF No. 34 (Mr. Harvin); ECF No. 36 (Mr. Woolfolk); ECF No. 37 (Mr. Ramos); ECF
No. 39 (Mr. Ramos, attaching exhibits). Mr. Woolfolk also filed a motion for an extension of
time for an additional twenty days to exhaust his administrative remedies. ECF No. 35.
Plaintiffs have also filed other motions that are now pending before the Court. Mr.
Harvin has filed a motion to add several new parties as additional defendants in this case, signed
only by himself. ECF No. 32. Mr. Hutton, Mr. Harvin, and Mr. Ramos then filed a similar
motion to add some of the same new parties as additional defendants, signed by each of them,
but not by Mr. Woolfolk (the “Joint Motion”). ECF No. 38.
For the reasons that follow, the Court DENIES Mr. Woolfolk’s motion for an extension
of time to exhaust his administrative remedies, ECF No. 35. Mr. Harvin’s individual motion to
add new defendants, ECF No. 32, is DENIED to the extent that it seeks to supplement the
Complaint to add Counselor Hess as a defendant and the claims against her and DENIED as
moot to the extent it seeks to amend the Complaint to add the Town of Suffield, Connecticut,
First Selectman of the Town of Suffield Melissa Mack and a company/corporation called
SLOAN (collectively the “New Defendants”) as defendants, as this same relief is requested by

2

the Joint Motion. The Joint Motion, ECF No. 38, is construed as a motion to amend the
complaint to add the New Defendants to the Complaint is GRANTED.
The Clerk of the Court is directed to docket the Joint Motion, ECF No. 38, as an
Amended Complaint, and add the Town of Suffield, Connecticut, First Selectman of the Town of
Suffield Melissa Mack and a corporation called SLOAN as defendants in this case. As the Court
further explains below, however, all of the claims in this case must be dismissed. This case will,
therefore, be dismissed in its entirety and judgment entered in favor of the Defendants and New
Defendants.
I.

FACTUAL ALLEGATIONS
For the sake of clarity, the Court repeats its description of the allegations in the Plaintiffs’

Complaint, though the primary issue before the Court at this time with regards to these
allegations is whether Plaintiffs have met the administrative exhaustion requirement of the
PLRA.
Plaintiffs generally assert that they are all housed in the O-Pod housing unit at
MacDougall. Compl. at 8, ECF No. 1. They allege that they may only flush the toilets in their
cells twice during each five-minute period. Id. If an inmate flushes a third time during the fiveminute period, the prison staff will, allegedly, re-set the toilet to flush again an hour later. Id.
Plaintifs allege that the policy of not permitting them to flush the toilet any time they
choose subjects them to harsh odors and the possibility of contracting unidentified illnesses.
Compl. at 8. They allege that inmates who have jobs in the unit are confined in cells with no
limit on the number of times the toilet may be flushed during a five-minute period. Id. at 8-9.

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On a weekly basis, prison staff members allegedly provide the plaintiffs with a liquid
solution and other supplies to clean their cells. Compl. at 9. The plaintiffs complain that the
cleaning supplies are passed through the same slot or “trap” in their cell doors that are also used
to pass food trays through at meal times. Id. at 9-10. They allege that this practice potentially
exposes them to contaminated food. Id. at 10.
On September 9, 2016, Mr. Harvin and Mr. Hutton, who were cellmates, allegedly
reported that they needed to use the toilet, but could not flush the toilet in their cell. Compl. at
10. Officers allegedly denied the requests by Mr. Harvin and Mr. Hutton to use another toilet or
to re-set the toilet in their cell. Id. at 10-11. Mr. Harvin used the toilet in the cell and he and his
cellmate were allegedly subjected to the odors of feces and urine for approximately an hour and
forty-five minutes. Id.
Plaintiffs further allege that there are allegedly only five working showers available to the
approximately fifty inmates housed in the O-Pod housing unit at MacDougall. Compl. at 11. On
September 9, 2016, Mr. Ramos attempted to use a shower on the upper tier of the housing unit.
Id. An officer allegedly warned Mr. Ramos that the shower was off limits to all inmates except
inmates who worked on the tier. Id. at 11-12. On September 10, 2016, Mr. Ramos submitted an
inmate request regarding this matter. Id. An officer confirmed that the upper tier shower could
only be used by inmates who worked on the tier. Id.
On September 13, 2016, from 9 a.m. to 6 p.m., the water supply to MacDougall was
allegedly shut down. Compl. at 12. During this time period, inmates were allegedly told to use
portable sanitation units that were placed in the recreation yards. Id. at 12-13. Mr. Harvin
alleges that, when he was allowed to use the portable toilet, a correctional officer would not
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permit him to bring soap with him to sanitize the toilet. Id. There was allegedly no anti-bacterial
soap in the toilet stall. Id.
When using the toilet, Mr. Harvin noticed that it had not, he alleges, been serviced in
thirty-seven days. Compl. at 12-13. Mr. Harvin alleges that the toilet had not been serviced in a
timely manner and that the number of inmates using the toilet exceeded the number
recommended by the company that owned the toilet, Royal Flush. Id.
Other than in the caption of the complaint and description of the parties, one of the
Plaintiffs, Mr. Woolfolk, is not otherwise mentioned in the body of the complaint. All four
Plaintiffs claim that the Defendants have allegedly violated their Eighth and Fourteenth
Amendment rights. They seek monetary damages. Compl. at 7.
II.

STANDARD OF REVIEW
As the Court will explain below, the primary issue as to the allegations in the Complaint

is whether Plaintiffs have met the administrative exhaustion requirement of the PLRA. Because,
however, Plaintiffs also bring certain claims for which the lack of administrative exhaustion is
less clear, the Court will also review certain claims to determine whether they state a claim.
Under 28 U.S.C. § 1915A, 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. 28 U.S.C. § 1915A. Under 28 U.S.C § 1915(e)(2), when a plaintiff proceeds in forma
pauperis, then “the court shall dismiss the case at any time if the court determines that . . . the
action . . . fails to state a claim on which relief may be granted.” 28 U.S.C § 1915(e)(2).

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In reviewing a pro se complaint, the Court must “liberally construe [the] pleadings,” and
interpret the complaint to “raise the strongest arguments it suggests.” Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir. 2007); see also Tracy v. Freshwater, 623 F.3d 90, 101-03 (2d Cir. 2010)
(discussing special solicitude that courts ought to show to pro se litigants). Although detailed
allegations are not required, the complaint must still 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. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
Conclusory allegations are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
III.

EXHAUSTION REQUIREMENT
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust administrative

remedies before filing a federal lawsuit related to prison conditions. See 42 U.S.C. § 1997e(a)
(“No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”). The administrative remedies
available to inmates incarcerated by the State of Connecticut Department of Correction (“DOC”)
are set forth in Administrative Directive 9.6, entitled Inmate Administrative Remedies, effective
August 15, 2013. See State of Connecticut Department of Correction, Administrative Directive
9.6: Inmate Administrative Remedies (2013), http://www.ct.gov/doc/LIB/doc/PDF/AD/

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ad0906.pdf. As the Court explained in its previous order, these procedures generally take at least
75 business days to fully exhaust, due to the amount of time that the DOC has to respond at each
stage of the procedure. See Order at 1-5.
This exhaustion requirement applies to “all inmate suits about prison life, whether they
involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532
(2002). Exhaustion of all available administrative remedies must occur regardless of whether the
administrative procedures provide the relief that the inmate seeks. See Booth v. Churner, 532
U.S. 731, 741 (2001) (“[W]e think that Congress has mandated exhaustion clearly enough,
regardless of the relief offered through administrative procedures.”). Furthermore, prisoners
must comply with all procedural rules regarding the grievance process before commencing an
action in federal court. See Woodford v. Ngo, 548 U.S. 81, 90-91, 93 (2006) (proper exhaustion
requires “using all steps that the agency holds out and doing so properly” and “demands
compliance with agency deadlines and other critical procedural rules”).
Completing the exhaustion process after a federal action has been filed does not,
therefore, satisfy the exhaustion requirement. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir.
2001) (“To begin, the plain language of § 1997e(a), providing that no action shall be brought
until such administrative remedies as are available are exhausted, suggests that exhaustion prior
to commencement of a § 1983 action is mandated.”) (internal quotation marks omitted).
“[C]ourts must take care not to frustrate the policy concerns underlying § 1997e(a) by allowing
inmate-plaintiffs to file or proceed with lawsuits before exhausting administrative remedies.” Id.
Special circumstances do not excuse an inmate's failure to meet the exhaustion
requirement. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (“The PLRA's history (just like its
7

text) thus refutes a “special circumstances” exception to its rule of exhaustion.”). An inmate's
failure to exhaust administrative remedies is only excusable if administrative remedies are, in
fact, unavailable. See id. (“[T]he PLRA contains its own, textual exception to mandatory
exhaustion. Under § 1997e(a), the exhaustion requirement hinges on the ‘availability’ of
administrative remedies.”) (internal quotation marks omitted).
The Court’s December 9, 2016 Order noted that the Complaint did not specifically allege
that any of the Plaintiffs exhausted their available administrative remedies before filing this case.
See Order at 7-8. Furthermore, the Court noted that, given that all of the specific events in the
Complaint allegedly occurred between September 9, 2016 and September 13, 2016, while
Plaintiffs signed the Complaint between September 12, 2016 and September 15, 2016, Plaintiffs
likely could not have exhausted their administrative remedies, a process that would likely take 75
business days. Id. The Court’s order therefore directed each Plaintiff to respond, within twenty
days, regarding whether he had exhausted his administrative remedies as required by the PLRA.
A.

Mr. Woolfolk

Mr. Woolfolk filed two documents in response to the Court’s previous order. One
document, which Mr. Woolfolk signed on December 20, 2016, and which the Court filed on
December 29, 2016, indicated that, “[h]onestly there was no attempt to exhaust administrative
remedies,” allegedly because Mr. Harvin had told him that “in Federal Courts there was no need
to exhaust remedies,” and stated that Mr. Woolfolk “apologize[d] for wasting the [C]ourt’s time,
[and] resources.” ECF No. 36. Mr. Woolfolk also filed a motion for extension of time to exhaust
his administrative remedies, which Mr. Woolfolk signed on December 15, 2016, and which the
Court filed on January 3, 2016. ECF No. 35. The motion for an extension of time noted that Mr.
8

Woolfolk had yet to fully exhaust his administrative remedies, and that “20 days is not enough
time to be able to fully exhaust my remedies [sic] in this case.” ECF No. 35 at 1.
As the Court explained above, under the PLRA, inmates who seek to bring federal
lawsuits regarding prison conditions must exhaust their administrative remedies before initiating
such suits. See 42 U.S.C. § 1997e(a). Completing the exhaustion of administrative remedies
after the plaintiff files suit is, therefore, not allowed. See Neal, 267 F.3d 116, 122 (explaining
that the PLRA’s plain language “suggests that exhaustion prior to commencement of a § 1983
action is mandated”). The Court will, therefore, deny Mr. Woolfolk’s motion for an extension of
time to exhaust his administrative remedies, ECF No. 35.
Both of Mr. Woolfolk’s filings concede that he had yet to exhaust his administrative
remedies as of the date he signed the Complaint. Because it is also apparent from the face of the
Complaint, due to the dates of the alleged events and the date that Mr. Woolfolk signed the
complaint, that Mr. Woolfolk could not have exhausted his administrative remedies before filing
this action, the Court dismisses all of his claims in the Complaint without prejudice under the
PLRA. See Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (explaining that though
administrative exhaustion is not pleading requirement the “district court still may dismiss a
complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint
that the plaintiff did not satisfy the PLRA exhaustion requirement”) (citing Jones v. Bock, 549
U.S. 199, 215 (2007)).
B.

Mr. Ramos

Mr. Ramos filed to identical responses to the Court’s order, one without exhibits, ECF
No. 37, and one attaching exhibits, ECF No. 39. These responses show that Mr. Ramos has not
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fully exhausted the administrative remedies available to him, as he had “yet to receive any
response from prison officials” as to the grievances he submitted regarding access to upper tier
showers and the timer and flushing restrictions on the toilet in his cell. ECF No. 39 at 2.
Mr. Ramos also stated that, in his view, the claim regarding the portable toilets that
inmates were required to use during the water shutdown on September 13, 2016, “was not
reoccurring so could not be grieved,” and that he had not therefore taken any steps to exhaust his
administrative remedies as to that claim. ECF No. 39 at 2. The Court construes this as an
argument that this claim is exempt from the administrative exhaustion requirement in the PLRA.
The exhaustion requirement in the PLRA applies to all claims regarding “prison life, whether
they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 524,
532 (2002). Thus, the claim regarding the portable toilet is not exempt from the administrative
exhaustion requirement.
Mr. Ramos’s filings show that he concedes that he had yet to exhaust his administrative
remedies as of the date he signed the Complaint. Because it is also apparent from the face of the
Complaint, due to the dates of the alleged events and the date that Mr. Ramos signed the
complaint, that Mr. Ramos could not have exhausted his administrative remedies before filing
this action, the Court dismisses all of his claims in the Complaint2 without prejudice under the
PLRA. See Williams, 829 F.3d at 122.
C.

Mr. Harvin and Mr. Hutton.

Mr. Ramos’s filing does not address the claim alleging that inmates receive cleaning supplies through the same slot
or trap in the cell doors where they receive food, but as the Court will explain below, these allegations do not state a
claim and can, therefore, also be dismissed under 28 U.S.C. § 1915A.
2

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Mr. Harvin, ECF No. 34, and Mr. Hutton, ECF No. 33, filed identical responses to the
Court’s order. As the Court explains below, these filings show that Mr. Harvin and Mr. Hutton
have not exhausted their administrative remedies as to all claims alleged in the Complaint,
allowing the Court to dismiss the Complaint for failure to exhaust administrative remedies.3
1.

Flushing Restriction Claim

In these filings, they allege that, as they were cellmates, Mr. Harvin sent separate inmate
requests to a maintenance supervisor and a counselor supervisor regarding the timer and flushing
restriction on the toilet in their cell on behalf of both of them, but that they had yet to receive a
response. Their filings further concede that they “did not file an Inmate Grievance regarding the
flushing restriction,” because, in their view, “this issue cannot be remedied through the
Grievance process,” because it was actually based on restrictions on water use that the Town of
Suffield placed on MacDougall. They allege that because the administrative proceedings
available to inmates cannot remedy something caused by the Town of Suffield, there is no
“availability” of administrative remedies to exhaust under the PLRA, and that this claim is
therefore exempt from the exhaustion requirement. 42 U.S.C. § 1997e(a).
As the Supreme Court has explained, however, the PLRA’s administrative exhaustion
requirements apply even when an incarcerated plaintiff seeks a type of relief that specifically is
not available through the available administrative process. See Booth, 532 U.S. at 741 (requiring
exhaustion even where prisoner complaint seeks monetary damages not available through
administrative process because PLRA’s text is not “meant to give prisoners a strong inducement

Neither Mr. Harvin nor Mr. Hutton’s filings address the claim alleging that inmates receive cleaning supplies
through the same slot or trap in the cell doors where they receive food, but as the Court will explain below, these
allegations do not state a claim and can, therefore, also be dismissed under 28 U.S.C. § 1915A.
3

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to skip the administrative process simply by limiting prayers for relief to money damages not
offered through administrative grievance mechanisms”). Furthermore, the allegations in Mr.
Harvin and Mr. Hutton’s filings contradict the allegations in the Complaint. See Compl. at 7-8
(explaining that cells in another part of MacDougall have no flush restriction or timer so inmate
“are able to flush the toilet unlimitedly” and that “this serves as proof that the staff of this facility
. . . do have the ability to eliminate this issue at their own discretion.”). The claim in the
Complaint regarding the toilet flushing restriction in their cell is, therefore, subject to the
administrative exhaustion requirement.4
Because Mr. Harvin and Mr. Hutton’s filings concede that they have not even attempted
to exhaust available administrative remedies before they signed the Complaint, and because it is
also apparent from the face of the Complaint, due to the dates of the alleged events and the date
that they signed the Complaint, that they could not have exhausted their administrative remedies
as to this claim before filing this case, the Court dismisses this claim without prejudice under the
PLRA. See Williams, 829 F.3d at 122.
2.

September 13, 2016 Portable Toilet Use Claim

Like Mr. Ramos, Mr. Harvin and Mr. Hutton both concede that they did not file a
grievance regarding the claim arising from their allegedly being required to use portable toilets
during a water shutdown September 13, 2016. They argue that because the alleged events
underlying this claim “only lasted for one day,” the claim is exempt from the PLRA’s
administrative exhaustion requirement because “a grievance cannot remedy a deprivation that

4

To the extent that the Joint Motion, ECF No. 38, alleges claims against the Town of Suffield, the Court also
explains below that the Joint Motion, if construed as a proposed amended complaint, fails to state a claim against the
Town of Suffield and other non-DOC defendants that the Joint Motion seeks to add to the case.

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has already been suffered as a result of a one time occurrence.” ECF No. 33 at 2. As the Court
explained above, the exhaustion requirement in the PLRA applies to all claims regarding “prison
life, whether they involve general circumstances or particular episodes.” Porter, 534 U.S. at
532. Thus, the claim regarding the portable toilet is not exempt from the administrative
exhaustion requirement. Because it is apparent from both Mr. Harvin and Mr. Hutton’s filings
and the face of the Complaint that they had not exhausted their administrative remedies as to this
claim before filing this case, the Court dismisses this claim without prejudice under the PLRA.
See Williams, 829 F.3d at 122.
3.

Upper Tier Shower Access Claim

Mr. Harvin and Mr. Hutton also concede that they did not file an inmate grievance
regarding the claim arising from their being denied access and use of the upper tier showers.
They allege that after making a request to a prison official regarding access to the shower, they
and Mr. Ramos were transferred to a different cell block, which would “have made it futile” to
file a grievance because they were no longer housed in the unit where they were denied access to
the showers. See ECF No. 33 at 2-3. There is no authority to suggest that being transferred to a
different cell block exempts a claim arising from events occurring while a plaintiff was housed in
the previous cell block from the administrative exhaustion requirement in the PLRA. See Ross,
136 S. Ct. at 1858 (explaining that there is no “‘special circumstances’ exception” to the PLRA
exhaustion requirement); Porter, 534 U.S. at 532 (explaining that PLRA exhaustion requirement
applies to all claims regarding “prison life, whether they involve general circumstances or
particular episodes”). The claim regarding upper tier shower access is not, therefore, exempt
from the administrative exhaustion requirement. Because it is apparent from both Mr. Harvin
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and Mr. Hutton’s filings and the face of the Complaint that they had not exhausted their
administrative remedies as to this claim before filing this action, the Court dismisses this claim
without prejudice under the PLRA. See Williams, 829 F.3d at 122.

IV.

Review of Claims for Failure to State a Claim
A.

Claims Regarding Use of Cell Door Traps to Deliver Cleaning Supplies

None of the filings from the Plaintiffs explicitly address the claim in the Complaint
alleging that DOC provides inmates in N-Pod and O-Pod cells with cleaning supplies through the
same slot or “trap” through which meal trays are delivered. The Complaint alleges that this
creates “inhumane and overly unsanitary” conditions and places inmates in general at a greater
risk of contracting unnamed diseases. See Compl. at 9-10. As the Court’s order had required
Plaintiffs to respond as to whether they exhausted their administrative remedies as to the entirety
of the Complaint, these filings suggest that Plaintiffs have not exhausted their administrative
remedies as to this claim, and the Court could, as explained above, likely dismiss this claim
without prejudice for failure to exhaust administrative remedies. Because, however, these
allegations are not associated with specific dates, the Court will also consider whether they
would state a claim.
As an initial matter, the Court notes that the Complaint appears to allege that these
conditions are not specific to Plaintiffs, but affect every inmate housed in the N-Pod and O-Pod
housing units at MacDougall. Because all Plaintiffs in this case are proceeding pro se, to the
extent that their Complaint can be construed as asserting claims on behalf of other inmates, they
cannot do so. See Berrios v. N.Y. City Housing Auth., 564 F.3d 130, 132 (2d Cir. 2009)
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(explaining that 28 U.S.C. § 1654 permits an individual “to proceed pro se with respect to his
own claims or claims against him personally,” but “does not permit an unlicensed layman to
represent anyone else other than themselves”) (internal quotation marks omitted); see also 28
U.S.C.A. § 1654 (“In all courts of the United States the parties may plead and conduct their own
cases personally or by counsel as, by the rules of such courts, respectively, are permitted to
manage and conduct causes therein.”). Plaintiffs can only allege these claims as to themselves.
To state a claim under the Eighth Amendment for “denying an inmate humane conditions
of confinement,” such that the prohibition against cruel and unusual punishment is violated, a
plaintiff must show that both an objective and subjective standard are met. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (“We hold instead that a prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”).
First, as to the objective standard, “the deprivation alleged must be, objectively,
sufficiently serious,” in that “a prison official's act or omission must result in the denial of the
minimal civilized measure of life's necessities.” Farmer, 511 U.S. at 834 (internal quotation
marks omitted). “The objective component of an Eighth Amendment claim is . . . contextual and
responsive to contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992).
Prisons must provide inmates with their “basic human needs—e.g., food, clothing, shelter,
medical care, and reasonable safety,” and a failure to do so violates the Eighth Amendment.
DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989). “[T]he Eighth
15

Amendment prohibition against cruel and unusual punishment does require that prisoners be
served . . . food that is prepared and served under conditions which do not present an immediate
danger to the health and well being of the inmates who consume it.” Robles v. Coughlin, 725
F.2d 12, 15 (2d Cir. 1983).
Second, as to the subjective standard, the plaintiff must also show that “a prison official .
. . ha[d] a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (internal quotation
marks omitted). Specifically, “[i]n prison-conditions cases, the state of mind is one of
‘deliberate indifference’ to inmate health or safety.” Id. This requires that the defendant official
both “knows of and disregards an excessive risk to inmate health or safety,” the defendant “must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. at 837.
The Complaint does not allege that any of the Plaintiffs actually suffered any health
concerns or injuries as a result of prison officials handing meals as well as cell cleaning materials
to them through the slots in their cell doors, or that the provision of toilet cleaning supplies no
more than once a week led to any injuries or other serious deprivations. Rather, the Complaint
generally assert that the conditions were unsanitary and placed the Plaintiffs at risk of contracting
an infection or disease. Nor do the Plaintiffs allege that any of the named Defendants were
specifically involved in or aware of these allegedly unsanitary or unhealthy conditions. As a
result, they cannot state a claim under the Eighth Amendment, because the Complaint does not
show that any of the Defendants both “kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 837. Accordingly, the claims in the Complaint as to the
alleged infrequent provision of cleaning supplies and the delivery of meals and cleaning supplies
16

through the same slots or traps in the cell doors would be dismissed for failure to state a claim
upon which relief may be granted, even if Plaintiffs had fully exhausted their administrative
remedies as to these claims. See 28 U.S.C. § 1915A(b)(1).

B.

Claims in Motions to add New Defendants

The first motion to add new defendants, ECF No. 32, is signed only by Mr. Harvin, and it
seeks to add several parties to the case, first, Counselor Hess of the DOC, and second, the New
Defendants: the Town of Suffield; Melissa Mack, the First Selectman of the Town of Suffield;
and a corporation called SLOAN. See generally ECF No. 32. The second motion, ECF No. 38,
or the Joint Motion, is signed by Mr. Harvin, Mr. Hutton, and Mr. Ramos, and also seeks to add
the New Defendants to this case. For the reasons that follow, the Court construes the Joint
Motion, ECF No. 38, as a motion to amend the Complaint to add the New Defendants, and it is
granted, though for the reasons that will be discussed below, the federal claims in the resulting
Amended Complaint would still be dismissed under 28 U.S.C. § 1915A for failure to state a
claim, and the Court will decline to exercise supplemental jurisdiction over the remaining state
law claims, and this case will therefore still be dismissed and closed. Mr. Harvin’s individual
motion to add new defendants, ECF No. 32, is denied, to the extent that it seeks to add Counselor
Hess as a defendant, and it is denied as moot as to the New Defendants, because the Court grants
the Joint Motion.
As an initial matter, the Court notes that while a pro se litigant in federal court has a right
to act as his or her own counsel, see 28 U.S.C. § 1654, he cannot represent others. See Berrios,
564 F.3d at 132. Thus, Mr. Harvin, as a pro se litigant and non-attorney, may not represent the
17

other Plaintiffs or assert claims on their behalf5. Nor can Mr. Harvin, Mr. Ramos, and Mr.
Hutton represent Mr. Woolfolk, or assert claims on his behalf.
1.

Claims Against Counselor Hess

In his individual motion, ECF No. 32, Mr. Harvin seeks to add Counselor Hess as a
defendant. Mr. Harvin’s allegations as to Counselor Hess concern events that allegedly occurred
after the filing of this action, and that were unrelated to the claims in the Complaint, which all
concerned conditions related to toilet and shower use in the O-Pod unit at MacDougall in
September 2016. The Court construes this motion as seeking to supplement the Complaint to
add new claims as to Counselor Hess as to events that occurred after the Complaint was filed.
Rule 15(d) of the Federal Rules of Civil Procedure permits a party to, “[o]n motion and
reasonable notice,” and with the Court’s permission, “serve a supplemental pleading setting out
any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Fed . Civ. P. 15(d). The district court may grant such a motion “upon
reasonable notice and upon such terms as may be just,” and “[a]bsent undue delay, bad faith,
dilatory tactics, undue prejudice to the party to be served with the proposed pleading, or futility,
the motion should be freely granted.” Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995)
Mr. Harvin’s individual motion asserts that Counselor Hess is in charge of the prisoner
electronic filing program at MacDougall. He claims that despite the Court’s Standing Order on
Prisoner Electronic Filing Program, which requires him to file documents and motions

The Court will refer to “Plaintiffs’ claims” that are included in the Joint Motion, but under 28 U.S.C. § 1654,
because Mr. Woolfolk did not sign the Joint Motion, and because Mr. Harvin, Mr. Hutton, and Mr. Ramos cannot
represent Mr. Woolfolk, the Court does not consider Mr. Woolfolk as having been one of the Plaintiffs to raise the
claims in the Joint Motion. Regardless, as the Court will explain below, even if Mr. Woolfolk had signed the Joint
Motion, none of the allegations in the Joint Motion are sufficient to state a claim upon which relief can be granted.
5

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electronically using the Program procedures, he has filed all documents and motions by United
States Mail. He claims that he has not received Notices of Electronic Filing (“NEFs”) regarding
documents and orders that he has filed in this case. He contends that it has been difficult to
remain aware of the status of the case without receiving the NEFs, but he has been permitted to
contact the Court by telephone to determine what motions or orders have been filed. He asserts
that Counselor Hess has denied him access to the courts, equal protection of the laws, due
process and has violated his right to be free from cruel and unusual punishment.
Mr. Harvin previously attempted to file a supplemental complaint to add Counselor Hess
as a defendant without permission. See ECF No. 24. The exhibit filed in support of that
supplemental complaint, was Mr. Harvin’s inmate request addressed to Counselor Hess dated
October 23, 2016. See ECF No. 25. The request included a response from Counselor Hess dated
October 27, 2016. In her response, Counselor Hess stated that she routinely delivered any NEFs
that she received to inmates on the day that she received them. See id. On December 9, 2016,
the Court struck the supplemental complaint as having been improperly filed, both because there
was no indication claims against Counselor Hess could have been fully administratively
exhausted before the filing of the supplemental complaint and the claims were unrelated to the
claims in the Complaint. See Order at 12.
Mr. Harvin signed the current motion to add Counselor Hess as a defendant and claims
against her on December 16, 2016, and the Court docketed this motion on December 27, 2016.
ECF No. 32. There are no new allegations regarding any attempts to exhaust administrative
remedies regarding the claims against Counselor Hess. As explained above, due to the timing of
the allegations against Counselor Hess and the filing of the motion to add her as a defendant, it is
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apparent that Mr. Harvin could not have been fully exhausted his administrative remedies before
either of these dates. Because Mr. Harvin did not meet the PLRA administrative exhaustion
requirements as to these claims, the Court denies his motion to supplement the Complaint to add
Counselor Hess as a defendant and his new claims against her on the grounds of futility. See
Quaratino, 71 F.3d at 66 (noting that courts may deny a motion under Rule 15(d) on futility
grounds); Williams, 829 F.3d at 122 (requiring dismissal for failure to exhaust).
Furthermore, the claims against Counselor Hess are unrelated to the claims in the
Complaint and do not satisfy Rule 15(d)’s requirement that they be connected to the claims in the
original Complaint. See LaBarbera v. Audax Construction Corp., 971 F. Supp. 2d 273, 285
(E.D.N.Y. 2013) (denying motion to amend or supplement complaint on ground that new claims
sought to be added involved issues that were “wholly unrelated” to the resolution of claims
included in the complaint) (citations omitted); Walls v. Fischer, 615 F. Supp. 2d 75, 285
(W.D.N.Y. 2009) (denying motion to file supplemental complaint because new claims concerned
incidents at a different correctional facility, involved different correctional staff members than
the defendants named in the complaint “and only tangentially relate[d] to the matters asserted in
the [complaint]”) (citations omitted). Thus, Mr. Harvin’s individual motion can also be denied
for failing to meet the requirements of Rule 15(d).
Mr. Harvin also seeks to add the New Defendants as parties to this case. As indicated
above, Mr. Harvin, Mr. Hutton and Mr. Ramos then filed the Joint Motion to add the same
parties and claims. Because, as the Court will explain below, the Court will grant the motion to
Joint Motion, Mr. Harvin’s individual motion is moot as to the New Defendants.
B.

Claims against Town of Suffield, First Selectman Mack, and SLOAN
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The Joint Motion, ECF No. 38, seeks to add the Town of Suffield, First Selectman of
Suffield Melissa Mack, and a company called SLOAN as defendants, and alleges that each was
involved in or facilitated the toilet flushing restrictions that DOC imposed on Plaintiffs during
their confinement in O-Pod at MacDougall in September of 2016. The Court construes this as a
motion for leave to amend the Complaint to add the New Defendants and the claims against
them, and also construes the Joint Motion as a proposed Amended Complaint.
1.

Amendment of the Complaint

Rule 15(a)(1) allows a plaintiff to amend his complaint once as a matter of right within,
in relevant part, “if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading.” Fed. R. Civ. P. 15(a)(1). A complaint is a pleading to which a
responsive pleading is required. See Fed. R. Civ. P. 12(a)(1) (indicating that a defendant “must
serve an answer” to the “summons and complaint”). Because Defendants have yet to be served
and have not, therefore, filed a responsive pleading, the Plaintiffs may amend their Complaint as
a matter of right. The Court therefore grants the Joint Motion, ECF No. 38, to amend the
Complaint to add the new parties.
2.

Analysis of Claims Under 28 U.S.C. § 1915

It is unclear whether the claims asserted against the New Defendants are subject to the
administrative exhaustion requirements of the PLRA. Administrative Directive 9.6, Inmate
Administrative Remedies, which provides the administrative remedies available to Plaintiffs,
provides that “[t]he Department of Correction shall provide a means for an inmate to seek formal
review of an issue relating to any aspect of an inmate’s confinement that is subject to the
Commissioner’s authority.” Because the New Defendants do not work for DOC and are,
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therefore, not subject to the DOC Commissioner’s authority, the Court assumes, without
deciding, that exhaustion requirements do not apply, and moves on to review the claims against
the New Defendants and determine whether they state a claim on which relief can be granted.
See 28 U.S.C. § 1915(e)(2)(B) (requiring court to evaluate cases filed in forma pauperis and
dismiss if “the action or appeal . . . fails to state a claim on which relief may be granted” or
“seeks monetary relief against a defendant who is immune from such relief”).
a.

Claims Against Town of Suffield and First Selectman Mack

The Joint Motion, proposed amended complaint, alleges the Town of Suffield
(“Suffield”) imposes restrictions on water usage by housing units at MacDougall. First
Selectman Mack is allegedly the Executive Officer of the Suffield and the supervisor of every
town employee. Plaintiffs allege that she is aware of the water restriction. Plaintiffs allege that
these Defendants are, therefore, liable for violating their Eighth Amendment rights to be free
from cruel and unusual punishment and their rights under the Fourteenth Amendment. See Joint
Motion at 3, ECF No. 38.
Yet, the Joint Motion does not allege any action by Suffield, except that it allegedly
imposed a water usage restriction on MacDougall, nor any action by First Selectman Mack,
except that she allegedly supervises every town employee. That Suffield imposed a water usage
restriction does not, in and of itself, constitute conduct that violates Plaintiffs’ rights. As the
Court explained above, the Complaint in this case alleges that the DOC and its employees are
responsible for the toilet flushing restrictions that the Plaintiffs allege are violating their rights.
See, e.g., Compl. at 7-8 (explaining that cells in another part of MacDougall have no flush
restriction or timer so inmate “are able to flush the toilet unlimitedly” and that “this serves as

22

proof that the staff of this facility . . . do have the ability to eliminate this issue at their own
discretion.”). The Joint Motion also does not allege that Suffield or First Selectman Mack had
any direct involvement with or participated in the DOC’s decision to impose the flushing
restrictions.
Even if the Joint Motion did allege that Suffield and First Selectman Mack were directly
involved in the decision to impose the toilet flushing restriction, these allegations would fail to
state a claim. District courts in the Second Circuit have consistently held that temporary
deprivations of toilet use that do not result in serious physical harm or contamination do not rise
to the level of Eighth Amendment or other constitutional violations. See Beckford v. New York
State Office of Mental Health, No. 06-CV-00561 (SR), 2010 WL 1816689, at *12 (W.D.N.Y.
May 3, 2010) (explaining that plaintiff’s claim that “he was deprived of water and electricity” in
his cell for “twenty-two hours” “may have been restrictive or even harsh” but the “conditions
d[id] not rise to the level of an Eighth Amendment violation”); Rogers v. Laird, No. 07-CV-668
(LEK) (RFT), 2008 WL 619167, at *3 (N.D.N.Y. Feb. 8, 2008) (holding that “[t]he temporary
deprivation of restroom privileges for a three hour period does not constitute an extreme
deprivation of life's necessities” sufficient to make out an Eighth Amendment claim); Bourdon v.
Roney, No. 99-CV-0769 (LEK) (GLS), 2003 WL 21058177, at *11 (N.D.N.Y. Mar. 6, 2003)
(stating that plaintiff alleged that he “went, at most, three hours without bathroom privileges and
water” the plaintiff “failed to allege or substantiate both the objective and subjective
components” of an Eighth Amendment claim concerning the “methods of confinement” and
“failed to adequately allege that he was denied minimal necessities of civilized life for a
substantial period of time”); Odom v. Keane, No. 95 CIV. 9941 (SS), 1997 WL 576088, at *4-5
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(S.D.N.Y. Sept. 17, 1997) (holding that where plaintiff alleged various claims including that he
was placed in an “unsanitary cell” that “did not have a working toilet” and that on another
occasion there was an “alleged malfunctioning of the toilet” he did not make out an Eighth
Amendment claim because each of these conditions “was rectified by the end of the day”).
In the Complaint, Mr. Harvin and Mr. Hutton allege that, on one occasion, the flushing
restriction resulted in their not being permitted to flush the toilet for one hour and forty-five
minutes. Mr. Ramos alleges no claims that are specific to him regarding the effect of the
flushing restriction on him. The Court therefore concludes that, even if the Joint Motion were
construed as an Amended Complaint alleging that Suffield and First Selectman Mack directly
caused the DOC to implement the toilet flushing restriction at MacDougall, it would fail to state
a claim for the violation of Plaintiffs’ constitutional rights. The Eighth and Fourteenth
Amendment claims against the Town of Suffield and the First Selectman Mack are dismissed.
See 28 U.S.C. § 1915(e)(2)(B)(ii).
b.

Claims Against SLOAN

The Joint Motion describes SLOAN as the manufacturer of the toilets DOC provides to
inmates at MacDougall. Plaintiffs allege that SLOAN toilets in some housing units, including OPod have timers embedded in them that may be programmed to restrict the number of times the
toilets may be flushed during a particular time period, preventing them from being able to flush
the toilets as frequently as they choose. Plaintiffs allege that SLOAN toilets in other cell blocks
do not have this restriction. Plaintiffs bring claims under 42 U.S.C. § 1983 (“Section 1983”)
alleging that SLOAN has violated their Eighth Amendment rights to be free from cruel and

24

unusual punishment and their rights to equal protection and Due Process under the Fourteenth
Amendment. See Joint Motion at 3.
There are no facts to suggest that SLOAN is a state actor that can be sued under Section
1983. “[T]he under-color-of-state-law element of [Section 1983] excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted). To state a claim of a
violation of his or her constitutional rights under 42 U.S.C. 1983, an inmate “is . . . required to
show state action.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012). The Joint Motion
alleges that SLOAN is a private company.
A private party may be held liable for unconstitutional conduct under Section 1983 only
if "there is such a close nexus between the State and the challenged action that seemingly private
behavior may be fairly treated as that of the State itself.” Abdullahi v. Pfizer, Inc., 562 F.3d 163,
188 (2d Cir. 2009) (internal quotation marks omitted). Furthermore, “a private entity does not
become a state actor for purposes of Section 1983 merely on the basis of the private entity's
creation, funding, licensing, or regulation by the government.” Fabrikant, 691 F.3d at 207
(internal quotation marks omitted).
Any contract SLOAN may have had with the State of Connecticut Department of
Correction to supply toilets or toilet flushing mechanisms to MacDougall does not render
SLOAN a “state actor” or show that SLOAN was “acting under color of state law” for purposes
of Section 1983. See, e.g., Rendell–Baker v. Kohn, 457 U.S. 830, 841 (1982) (“Acts of ...
private contractors do not become acts of the government by reason of their significant or even
total engagement in performing public contracts.”); Phelan ex rel. Phelan v. Torres, 843 F. Supp.
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2d 259, 273 (E.D.N.Y. 2011) (“The fact that the state may contract with a private party to
perform a function does not [necessarily] transform the private party into a state actor.”), aff'd,
512 F. App'x 88 (2d Cir. 2013). Because SLOAN is not a state actor, the Joint Motion does not
state a Section 1983 claims against SLOAN, and this claim is, therefore, subject to dismissal
under 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court also notes that the Joint Motion does not contain any allegations that SLOAN
participated in the DOC’s decision to use toilets with timers in certain cell blocks or to impose
flushing restrictions in certain cell blocks.
Furthermore, even if the Plaintiffs could show that SLOAN was a state actor and was
actually involved in the DOC’s decision to install toilets with timers in certain cell blocks, courts
have routinely held that similar or more egregious restrictions on toilet flushing did not state a
claim under the Eighth Amendment. See Grender v. Wall, No. 15-CV-0086, 2016 WL 3093903,
at *2, 6 (E.D. Wis. June 1, 2016) (explaining that six months of confinement in restrictive
housing cell with computerized SLOAN toilet and toilet flushing restriction preventing toilets
from being flushed more than two times in two minutes or else the flushing function is shut
down for approximately fifteen minutes does not state an “extreme deprivation” of needs that
violates the Eighth Amendment); Smith v. Gasparini, No. 94-C-50160, 1997 WL 715688, at *4
(N.D. Ill. Nov. 10, 1997) (holding in case where “toilet did not flush adequately” and plaintiff
alleged that “the smell of waste made [him] vomit” that “inadequate flushing do[es] not state an
extreme deprivation” that violates the Eighth Amendment); Odom, 1997 WL 576088 at *4-5
(explaining that plaintiff’s allegation that his toilet that did not flush for ten hours each night for
two months did not rise to the level of a condition violating the Eighth Amendment). The Court
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therefore dismisses all claims against SLOAN for failure to state a claim. See 28 U.S.C. §
1915(e)(2)(B)(ii).
V.

CONCLUSION
For the foregoing reasons, Mr. Woolfolk’s motion for extension of time, ECF No. 35, to

exhaust his administrative remedies is DENIED. All claims in the Complaint as to the toilet
flushing restriction, the unsanitary portable toilet, and upper tier shower access, are
DISMISSED without prejudice under 42 U.S.C. § 1997e(a) for failure to exhaust administrative
remedies before filing this action. The claim in the Complaint regarding the provision of
cleaning supplies and meals through the same slot or trap in cell doors is DISMISSED under 28
U.S.C. § 1915A(b)(1) for failure to state a claim.
For the reasons explained above, Mr. Harvin’s Motion to Add Defendants, ECF No. 32,
is DENIED to the extent that it seeks to supplement the Complaint to add claims against
Counselor Hess as a defendant and to add her as a defendant, and DENIED as moot to the extent
that it seeks to add the New Defendants to the case. The Court construes Joint Motion to add the
New Defendants , ECF No. 38, as a motion to amend the Complaint, and GRANTS the motion.
The Clerk of the Court is directed to add the Town of Suffield, First Selectman
Melissa Mack and SLOAN as Defendants, and shall file the Joint Motion, ECF No. 38 as an
Amended Complaint.
For the reasons explained above, all new claims in the Joint Motion, or Amended
Complaint, against the new Defendants are DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim.
The Court further orders that if the plaintiffs choose to appeal this decision, they may not
27

do so in forma pauperis, because such appeals would not be taken in good faith. See 28 U.S.C. §
1915(a)(3).
The Clerk is directed to enter judgment for the Defendants and to close this case.
SO ORDERED at Bridgeport, Connecticut, this 29th day of August, 2017.

/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge

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