Mercado v. Corrections et al

Filing 13

INITIAL REVIEW ORDER: All 42 U.S.C. § 1983 claims against the Department of Correction, the Fifth Amendment due process claim, the disciplinary sanction claim against all Defendants, and the ADA claim against all Defendants in their individual capacities are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). Please see attached order. The Clerk of Court is also directed to read and comply with the order's conclusion section. Discovery due by 07/05/2017. Dispositive Motions due by 08/04/2017. Signed by Judge Vanessa L. Bryant on 01/06/2017. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RAUDELL MERCADO,
Plaintiff,
v.
DEP’T OF CORRECTIONS, ET AL.,
Defendants.

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Case No. 3:16cv1622(VLB)

INITIAL REVIEW ORDER
The Plaintiff, Raudell Mercado, currently incarcerated at Northern
Correctional Institution (“Northern”), has filed a motion for appointment of
counsel and a civil rights complaint.

He names the State of Connecticut

Department of Correction,1 Commissioner Scott Semple, Deputy Commissioner
Monica Rinaldi, Warden Ann Cournoyer, Deputy Wardens William Mulligan and
Richard Laffargue, Acting Warden Scott Erfe, Director of Clinical Services Craig
Burns, Americans with Disabilities Act (“ADA”) Director Colleen Gallagher,
Psychologist Joslyn Cruz, Drs. Mark Frayne and Gerard Gagne, Health Service
Administrator Brian Liebel and Captain Jesse Johnson as Defendants.

For the

reasons set forth below, the complaint is dismissed in part and the motion for
appointment of counsel is denied.
I.

Complaint [Dkt. No. 1]
Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil

The Plaintiff incorrectly refers to Defendant State of Connecticut
Department of Correction as the Department of Corrections. The State of
Connecticut Department of Correction website may be accessed at
http://www.ct.gov/doc/site/default.asp. From this point forward, the Court will
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complaints against governmental actors and “dismiss ... any portion of [a]
complaint [that] is frivolous, malicious, or fails to state a claim upon which relief
may be granted,” or that “seeks monetary relief from a defendant who is immune
from such relief.” Id. Rule 8 of the Federal Rules of Civil Procedure requires that
a complaint contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although detailed allegations are not required, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks and citations omitted).

A complaint that

includes only “‘labels and conclusions,’ or ‘a formulaic recitation of the elements
of a cause of action. . .’” or “‘naked assertion[s]’ devoid of ‘further factual
enhancement,’” does not meet the facial plausibility standard. Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts still have
an obligation to interpret “a pro se complaint liberally,” the complaint must
include sufficient factual allegations to meet the standard of facial plausibility.
See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).
In August 2015, Commissioner Semple, Deputy Commissioner Rinaldi and
Director of Psychiatric Services Burns transferred the Plaintiff to Northern.

The

refer to Defendant Department of Corrections as the Department of Correction.
2

Plaintiff was a pre-trial detainee when he arrived at Northern.

Department of

Correction records reflect that the Plaintiff was sentenced on September 14,
2015.2
The Plaintiff has been diagnosed with multiple mental disorders. He has
taken medication to treat the disorders since childhood.
The Plaintiff claims that there are no mental health units at Northern.

It

was the decision of Commissioner Semple, Deputy Commissioner Rinaldi,
Director of Psychiatric Services Burns, Warden Cournoyer, Deputy Warden
Mulligan, Health Service Administrator Brian Liebel, and ADA Director Gallagher
to confine the Plaintiff in phase one of the administrative segregation at Northern.
The conditions in phase one, including isolation, are very restrictive and
have exacerbated the Plaintiff’s mental illnesses and caused him physical injury
as well. The conditions in administrative segregation include: confinement to a
cell for twenty-three hours a day, meals eaten in the cell, recreation one hour a
day, showers three times a week, no contact visits, one telephone call a week, no
work assignments, no participation in congregate religious services and limited
use of the toilet and sink.

The Plaintiff also asserts that he must wear full

restraints when leaving his cell. The Plaintiff claims that he has been confined in
phase one of administrative segregation at Northern for almost the entire time
that he has remained at Northern.

The plaintiff’s Offender Information record may be found on the
Department of Correction website under Inmate Search using his CT Inmate
Number 400861. See http://www.ct.gov/doc/site/default.asp. (Last visited on
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2

The Plaintiff contends Dr. Gagne sexually harassed him when they spoke
one-on-one.

The Plaintiff reported the incident, but no action was taken in

response to the report. Dr. Frayne on many occasions placed the Plaintiff on
behavior observation status in retaliation for the Plaintiff’s complaints to Dr.
Frayne’s supervisor regarding improper treatment of the Plaintiff’s mental health
conditions.
The Plaintiff claims that during his confinement at Northern, Commissioner
Semple, Deputy Commissioner Rinaldi, Warden Cournoyer, Director Burns,
Deputy Warden Mulligan, Administrator Brian Liebel, ADA Director Gallagher, and
Drs. Frayne and Gagne have failed to provide mental health treatment to the
Plaintiff and to hire and to train staff to deal with mentally ill inmates. He claims
Drs. Frayne and Gagne, Director Burns and Administrator Liebel have neglected
to develop an adequate treatment plan for the Plaintiff’s mental illnesses, failed to
provide him with psychotherapy, refused to involve his family in his mental health
treatment and discontinued mental health medications for him.
On February 29, 2016, Warden Cournoyer, Deputy Warden Mulligan, Dr.
Mark Frayne and Dr. Gerard Gagne transferred the Plaintiff from Northern to
Cheshire Correctional Institution (“Cheshire”). There are no mental health units
at Cheshire. It was the decision of Commissioner Semple, Deputy Commissioner
Rinaldi, Director Burns, Acting Warden Erfe, Deputy Warden Laffargue and ADA

January 3, 2017).
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Director Gallagher to confine the Plaintiff in administrative segregation at
Cheshire.
The Plaintiff claims that during his confinement at Cheshire, Commissioner
Semple, Director Burns, Acting Warden Erfe, Deputy Warden Laffargue, Dr. Cruz,
ADA Director Gallagher and Captain Johnson have failed to provide mental health
treatment to the Plaintiff and to train staff to deal with mentally ill inmates. He
further claims Dr. Cruz and Director Burns and Health Administrator Libel have
neglected to develop an adequate treatment plan for the Plaintiff’s mental
illnesses, failed to provide him with psychotherapy, refused to involve his family
in his mental health treatment, and failed to transfer him to the mental health unit
at Garner Correctional Institution in order to receive the mental health treatment
that he needed.
The Plaintiff generally alleges that he has received disciplinary sanctions
as a result of his behavior that was caused by his mental illness.

These

sanctions have included placement in punitive segregation, placement in in-cell
restraints, placement in four-point restraints, exposure to chemical agents, loss
of visitation and phone privileges and denial of hygiene items. No attempts were
made by mental health staff to intervene prior to imposing these types of
sanctions.
The Plaintiff claims that the conditions at Northern and Cheshire have
“caused him to suffer from criminal charges; racing thoughts, fear for safety, loss
of sleep, extreme anxiety attacks; to engage in acts of being beaten by custody
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as a form of self-harm . . . . extreme distrust of authority figures, to isolate himself
out of fear of being attacked; to have depression; [and] to have anger/rages.”
Compl., Dkt. No. 1 at 13. All Defendants have allegedly received copies of the
Plaintiff’s mental health records and should have been aware of that he was a
seriously mentally ill inmate.

Despite this knowledge, they subjected him to

restrictive conditions of confinement at both Cheshire and Northern for extended
periods of time.
The Plaintiff files this action pursuant to 42 U.S.C. § 1983 and the ADA. He
seeks declaratory and injunctive relief and monetary damages from the
Defendants in their individual and official capacities.
II.

Legal Analysis
A.

42 U.S.C. § 1983

To state a claim under 42 U.S.C. § 1983, the Plaintiff must allege facts
showing that the defendant, a person acting under color of state, law deprived
him of a federally protected right. See Lugar v. Edmondson Oil Co., 457 U.S. 922,
930 (1982). The Plaintiff claims that the Defendants violated his Eighth, Fifth and
Fourteenth Amendment rights.
The State of Connecticut Department of Correction is not a person subject
to suit under 42 U.S.C. § 1983. A state agency is not a person within the meaning
of § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (state
and state agencies not persons within meaning of 42 U.S.C. § 1983).

The

Department of Correction is a state agency. See Garris v. Dep’t of Corr., 170 F.
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Supp. 2d 182, 186 (D. Conn. 2001); see also Vaden v. Connecticut, 557 F. Supp. 2d
279, 288 (D. Conn. 2008) (noting “there is no basis for disputing that the
Department of Corrections is an arm of the State of Connecticut”). Like other
state agencies, the Department of Correction is not a person within the meaning
of § 1983.

See Santos v. State of Connecticut Dep’t of Corr., 3:04CV1562

(JCH)(HBF), 2005 WL 2123543, at *3 (D. Conn. Aug. 29, 2005) (observing that
“[n]either a Department of Correction nor a correctional institution is a person”
subject to liability under § 1983); Torrence v. Pelkey, 164 F. Supp. 2d 264, 271 (D.
Conn. 2001) (same).

Thus, the § 1983 claims against Defendant State of

Connecticut Department of Correction are dismissed as lacking an arguable legal
basis. See 28 U.S.C. § 1915A(b)(1).
B.

Due Process Claims Under Fifth and Fourteenth Amendments

The Plaintiff includes claims that Commissioner Semple, Director Burns,
and Deputy Commissioner Rinaldi violated his due process rights under the Fifth
Amendment as well as the Fourteenth Amendments when they transferred him to
Northern and placed him in the administrative segregation program rather than
transferring him to Garner. The Fifth Amendment Due Process Clause applies to
the federal government, not to the states. See Dusenbery v. United States, 534
U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment prohibits
the United States, as the Due Process Clause of the Fourteenth Amendment
prohibits the States, from depriving any person of property without “due process
of law.”); Poe v. Ullman, 367 U.S. 497, 540 (1961)(prohibitions “against the
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deprivation of life, liberty or property without due process of law” set forth in
Fourteenth Amendment is applicable to state government and the same
prohibitions in Fifth Amendment are applicable to “the Federal Government”);
Ambrose v. City of New York, 623 F. Supp. 2d 454, 466–67 (S.D.N.Y. 2009) (holding
that any due process claim against the city was properly brought under the
Fourteenth Amendment, not the Fifth Amendment).
The Plaintiff has not alleged that a federal official violated his Fifth
Amendment due process rights. Nor has he otherwise alleged facts to state a
claim under the Fifth Amendment.

Accordingly, the Fifth Amendment claim

against the Defendants is dismissed for failure to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915A(b)(1).
C.

Disciplinary Sanctions Claim

The Plaintiff generally asserts that he received disciplinary sanctions
because of behavior caused by his mental illness. He describes the sanctions as
placement in punitive segregation, denial of telephone and visitation privileges,
placement in in-cell restraints, placement in four-point restraints, exposure to
chemical agents, placement on behavior modification status and denial of
hygiene.
The Plaintiff does not indicate when these sanctions were imposed or when
the incidents occurred.

Furthermore, there are no allegations that any named

Defendant was involved in or responsible for imposing these sanctions or
involved in the use of a chemical agent during a cell extraction.
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Thus, the

Plaintiff has not alleged that the Defendants violated his Eighth or Fourteenth
Amendment rights in connection with the imposition of these sanctions. The
claim related to disciplinary sanctions is dismissed. See 28 U.S.C. § 1915A(b)(1).
D.

Remaining Constitutional Claims

The court concludes that the Plaintiff has stated plausible claims under the
Eighth and Fourteenth Amendments for deliberate indifference to mental health
needs and safety and unconstitutional conditions of confinement against
Defendants Semple, Rinaldi, Erfe, Cournoyer, Mulligan, Laffargue, Burns,
Gallagher, Liebel, Cruz, Frayne, Gagne and Johnson.3

The Eighth Amendment

sexual harassment claim will proceed against Defendant Gagne in his individual
and official capacities.

See Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015)

(“[A] single incident of sexual abuse, if sufficiently severe or serious, may violate
an inmate’s Eighth Amendment rights no less than repetitive abusive conduct.”)
The Eighth and Fourteenth Amendment deliberate indifference claims will
proceed against the Defendants in their individual capacities and in their official
capacities to the extent that the Plaintiff seeks declaratory and injunctive relief.

As indicated above, the plaintiff was a pretrial detainee during his
confinement at Northern in August 2015 and until September 14, 2015, when a
judge sentenced him in state court. The plaintiff’s claims regarding his
confinement at Northern during August and September when he was a pretrial
detainee are properly reviewed under the Fourteenth Amendment. See Caiozzo v.
Koreman, 581 F.3d 63, 69 (2d Cir. 2009)(pretrial detainee in state custody
“receives protection against mistreatment at the hands of prison officials under . .
. the Due Process Clause of the Fourteenth Amendment,” not the Eighth
Amendment which is applicable to convicted individuals).
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In addition, the Plaintiff has stated a plausible Fourteenth Amendment due
process claim against Defendants Semple, Rinaldi and Burns in connection with
his improper transfer to Northern and Cheshire and placement in the
administrative segregation program at those facilities.

This Fourteenth

Amendment due process claim will proceed against Defendants Semple, Rinaldi
and Burns in their individual capacities and in their official capacities to the
extent that the Plaintiff seeks declaratory and injunctive relief.

The Plaintiff has

stated a plausible First Amendment retaliation claim against Defendant Frayne
based on his alleged orders directing mental health staff to confine the Plaintiff
on a restrictive behavior observation status after the Plaintiff complained to
Defendant Frayne’s supervisor.

The First Amendment retaliation claim will

proceed against Defendant Frayne in his individual and official capacities.
E.

ADA Claim

The Plaintiff generally asserts that the Defendants violated his rights under
Title II of the ADA, 42 U.S.C. § 12101, et seq. He claims that he is a qualified
individual with a disability and that the Defendants have discriminated against
him because of his disability and have subjected him to restrictive housing
conditions in administrative segregation.
To state a claim under the ADA, the Plaintiff must plead “(1) that he is a
qualified individual with a disability; (2) that he was excluded from participation in
a public entity’s services, programs or activities or was otherwise discriminated
against by a public entity; and (3) that such exclusions or discrimination was due
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to his disability.” Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003). Most
importantly, the Plaintiff must allege that his mistreatment was motivated by
either discriminatory animus or ill will due to disability. See Elbert v. New York
State Dep’t of Corr. Servs., 751 F. Supp. 2d 590, 594-95 (S.D.N.Y. 2010) (citing
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001)).
The Department of Correction is a public entity within the meaning of the
ADA. See 42 U.S.C. § 12131(1)(A) (defining public entity to include any state or
local government); Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10
(1998) (“State prisons fall squarely within [Title II's] statutory definition of ‘public
entity,’ which includes ‘any department, agency . . ., or other instrumentality of a
State . . . or local government.”) (quoting 42 U.S.C. § 12131(1)(B)). Furthermore,
the Second Circuit has recognized that a valid ADA claim may be stated against a
state official in his official capacity. See Henrietta D. v. Bloomberg, 331 F.3d 261,
289 (2d Cir. 2003).
The Plaintiff alleges that he suffers from serious mental health conditions
and that the Defendants, despite their knowledge of his medical needs, did not
provide him with treatment or house him in a facility that might have sufficient
resources or staff to treat his mental illness. The Plaintiff alleges that he was
denied medical treatment to which inmates are entitled. He alleges that because
of this deprivation his mental health deteriorated such that he could not comport
his conduct and engaged in acts of misconduct. As a result of the symptomatic
behavior of his untreated mental illness, he was assigned to the restrictive
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administrative segregation unit where he was deprived of the rights and
privileges afforded to inmates without his mental health conditions. Specifically,
he alleges he was deprived of liberty, interaction with other inmates, recreation,
showers, contact visits, telephone calls, work assignments, participation in
congregate religious services and use of the toilet and sink to which nonmentally ill inmates are entitled. He also alleges that he was placed in four-point
restraints, exposure to chemical agents, and placed on behavior modification
status. The Plaintiff’s claim is likened to assigning a vision impaired inmate to
administrative segregation after the inmate fell and sustained an injury in order to
prevent the inmate from having another accident rather than accommodating the
impairment by giving the inmate a visual aid. Plaintiff alleges that the Defendants
knew that he was mentally ill and yet knowingly and intentionally denied him
mental health treatment and participation in various programs or activities due to
conduct caused by his untreated mental illness. The court concludes that the
Plaintiff has alleged sufficient facts to state a plausible claim that the Defendants
denied him treatment and participation in various programs or activities because
of his mental illness. Thus, the ADA claim will proceed.
Because Title II of the ADA does not “provide[ ] for individual capacity suits
against state officials,” any ADA claim against the Defendants in their individual
capacities is dismissed.

See Garcia v. S.U.N.Y. Health Sciences Center of

Brooklyn, 280 F.3d at 107; 28 U.S.C. § 1915A(b)(1). The ADA claim will proceed

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against the Department of Correction and the Defendants in their official
capacities.
ORDERS
The Court enters the following Orders:
(1)

All § 1983 claims against Defendant Department of Correction, the

Fifth Amendment due process claim, the disciplinary sanctions claim against all
Defendants, and the ADA claim against all Defendants in their individual
capacities are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). The Eighth and
Fourteenth Amendment claims of deliberate indifference to mental health needs
and safety and unconstitutional conditions of confinement against Defendants
Semple, Rinaldi, Erfe, Cournoyer, Mulligan, Laffargue, Burns, Gallagher, Liebel,
Cruz, Frayne, Gagne and Johnson, the Eighth Amendment sexual harassment
claim against Defendant Gagne, the Fourteenth Amendment due process claim
against Defendants Semple, Rinaldi and Burns in connection with the Plaintiff’s
improper transfer to Northern and Cheshire and placement in the administrative
segregation programs at those facilities and the First Amendment retaliation
claim against Defendant Frayne will proceed.

These claims will go forward

against the Defendants in their individual capacities and in their official capacities
to the extent that the Plaintiff seeks declaratory and injunctive relief. The ADA
claim will proceed against Defendants Department of Correction, Semple, Rinaldi,
Erfe, Cournoyer, Mulligan, Laffargue, Burns, Gallagher, Liebel, Cruz, Frayne,
Gagne and Johnson in their official capacities.
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(2)

Within twenty-one (21) days of this Order, the U.S. Marshals Service

shall serve the summons, a copy of the complaint and this Order on Defendants
Department of Correction, Scott Semple, Monica Rinaldi, Ann Cournoyer, Scott
Erfe, William Mulligan, Craig Burns, Brian Liebel, Joslyn Cruz, Mark Frayne,
Gerard Gagne, Jesse Johnson and Richard Laffargue in their official capacities
by delivering the necessary documents in person to the Office of the Attorney
General, 55 Elm Street, Hartford, CT 06141.
(3)

Within twenty-one (21) days of this Order, the Clerk shall ascertain

from the Department of Correction Office of Legal Affairs the current work
addresses for Commissioner Scott Semple, Deputy Commissioner Monica
Rinaldi, Warden Ann Cournoyer, Deputy Wardens William Mulligan and Richard
Laffargue, Acting Warden Scott Erfe, Director of Clinical Services Craig Burns,
Americans with Disabilities Act Director Colleen Gallagher, Psychologist Joslyn
Cruz, Drs. Mark Frayne and Gerard Gagne, Health Service Administrator Brian
Liebel and Captain Jesse Johnson and mail a waiver of service of process
request packet to each Defendant in his or her individual capacity at his or her
current work address. On the thirty-fifth (35th) day after mailing, the Clerk shall
report to the court on the status of all the requests. If any Defendant fails to
return the waiver request, the Clerk shall make arrangements for in-person
service by the U.S. Marshals Service and the Defendant shall be required to pay
the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).

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(4)

Defendants shall file their response to the complaint, either an

answer or motion to dismiss, within sixty (60) days from the date the notice of
lawsuit and waiver of service of summons forms are mailed to them.

If the

Defendants choose to file an answer, they shall admit or deny the allegations and
respond to the cognizable claims recited above. They may also 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 six months (180 days) from the date of this Order.
Discovery requests need not be filed with the Court.
(8)

All motions for summary judgment shall be filed within seven

months (210 days) from the date of this Order.

SO ORDERED at Hartford, Connecticut this 6th day of January, 2016.
________/s/______________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE

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