Paschal v. Santili

Filing 43

RULING denying 21 The Motion to Amend to Add Relief; denying 22 Motion for Protective Order; denying 23 Motion for Summary Judgment; denying without prejudice to refiling at a later stage of litigation 31 Motion to Appoint Counsel ; grant ing 33 Motion to Amend the Motion for Summary Judgment. The Clerk shall docket a copy of the Motion to Amend (Doc. No. 33) as a Memorandum and Local Rule 56(a)1 Statement in support of the Motion for SummaryJudgment (Doc. No. 23). Signed by Judge Janet C. Hall on 7/6/2017. (Anastasio, F.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DEJA L. PASCHAL,
Plaintiff,
v.
CTO SANTILI,
Defendant.

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CIVIL ACTION NO.
3:16-cv-1690 (JCH)

JULY 6, 2017

RULING ON PENDING MOTIONS (DOC. NOS. 21, 22, 23, 31, AND 33)
The plaintiff, Deja L. Paschal ("Paschal"), is currently incarcerated at Northern
Correctional Institution (“Northern”).1 He has filed a Motion to Amend Complaint (Doc.
No. 21), a Motion for Summary Judgment (Doc. No. 23), a Motion for Protective Order
(Doc. No. 22), a renewed Motion for Appointment of Counsel (Doc. No. 31), and a
Motion to Amend the Motion for Summary Judgment (Doc. No. 33). For the reasons set
forth below, the court grants Paschal’s Motion to Amend the Motion for Summary
Judgment (Doc. No. 33) and denies the four other motions.
I.

MOTION TO AMEND TO ADD RELIEF (DOC. NO. 21)
Paschal seeks leave to amend his Complaint to add a new request for relief.

Specifically, he seeks to add the following request: "The plaintiff also respectfully asks
the court to waive any costs of incarceration that may be deducted from the money
awarded." Mot. Add Relief at 1.

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Paschal refers to himself as also being known as or now being known as Kyle Lamar Paschal or
Kyle Lamar Paschal-Barros. See Mots., Doc. Nos. 21, 22, 23 at 1. Department of Correction records
reflect that his inmate number, 390410, is still associated with the name of Deja Lamar Paschal. Because
Paschal has provided no proof of a name change, the court will continue to refer to him as Deja Lamar
Paschal.

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The defendant, CTO Santili (“Santili”), filed an answer to the Complaint on
February 16, 2017. Because Paschal’s Motion seeking to file an amended complaint to
add a new request for relief was filed more than twenty-one days after service of the
Answer to the Complaint, Paschal may not amend as of right. See Rule 15(a)(1)(B).
After the time to amend as of right has passed, “[t]he court should freely” grant leave to
amend "when justice so requires." Fed. R. Civ. P. 15(a)(2). In determining whether to
grant a litigant leave to amend under Rule 15(a), the court considers such factors as
undue delay, bad faith, dilatory motive, undue prejudice and futility of the amendment.
See Foman v. Davis, 371 U.S. 178, 182 (1962).
Pursuant to Connecticut General Statutes § 18-85a, the State of Connecticut is
authorized to assess an inmate for the costs of his or her incarceration. See Regs.
Conn. State Agencies § 18-852-3 (“On or after October 1, 1997, inmates shall be
charged for and shall be responsible to pay the assessed cost of incarceration, as
defined in [Conn. State Agencies §] 18-8a-1(a).”). To enforce the assessment of
incarceration costs, Connecticut General Statutes § 18-85b and Regulations of
Connecticut State Agencies § 18-85a-2 authorize the State to place a lien on any
recovery awarded to an inmate in connection with a civil lawsuit. Specifically,
Connecticut’s repayment of costs of incarceration statute provides:
[i]n the case of causes of action of any person obligated to pay the costs
of such person's incarceration under section 18-85a and regulations
adopted in accordance with said section . . . the claim of the state shall be
a lien against the proceeds therefrom in the amount of the costs of
incarceration or fifty per cent of the proceeds received by such person
after payment of all expenses connected with the cause of action,
whichever is less . . . .

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Conn. Gen. Stat. § 18-85b(a). In addition, the statute provides that any recovery an
inmate receives from a civil lawsuit may be assigned directly to the State of Connecticut
and that the lien "shall constitute an irrevocable direction to the attorney for such person
to pay the Commissioner of Correction . . . in accordance with its terms . . . ." Id.
In its initial review of the Complaint, the Court dismissed all official capacity
claims against Santili and concluded that the case would proceed only as to the Eighth
Amendment failure to protect and deliberate indifference to safety claims against Santili
in his individual capacity. The Complaint does not include a challenge to the legality or
constitutionality of the costs of incarceration statute. This court does not have the
authority to grant an exception to a statute, and therefore cannot give Paschal the relief
he requests.
Furthermore, Santili, in his individual capacity, has no authority to waive costs of
incarceration. The court therefore lacks the authority to grant Paschal relief from the
costs of incarceration statute. See, e.g., Himmelreich v. Warden FCI Danbury, No.
3:14-cv-930(SRU), 2014 WL 5783003, at *1 (denying injunction in part because the
officials named in the injunction were not parties to the case and the court therefore
lacked personal jurisdiction).
Finally, even if Paschal has properly plead a challenge to the statute itself, and
had brought this claim against the Commissioner of Connecticut’s Department of
Correction in his official capacity, Paschal would still lack standing to challenge the
legality of the costs of incarceration statute. The “irreducible constitutional minimum of
standing” requires an injury in fact which is both “concrete and particularized” and

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“actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
The proper time to raise a challenge to the Connecticut costs of incarceration statute
would be when the State of Connecticut is enforcing it against a settlement or award of
damages pursuant to title 42 section 1983 of the United States Code. See, e.g., Bonilla
v. Semple, No. 3:15-CV-1614 (VAB), 2016 WL 4582038 (D. Conn. Sept. 1, 2016)
(addressing a challenge to section 18-85b after settlement of a section 1983 action and
after “the Connecticut Department of Administrative Services demanded that [the
plaintiff] give them roughly half of the settlement proceeds under a ‘cost of incarceration’
lien”). Unless and until Paschal receives a settlement or monetary damages from the
pending action, and the State of Connecticut enforces the costs of incarceration statute
against him, Paschal has neither an “actual” or an “imminent” harm to redress, and
therefore does not have standing to bring this claim.
For these reasons, Paschal’s Motion to Amend to Add Relief (Doc. No. 21) is
DENIED as futile at this time.
II.

MOTION TO AMEND MOTION FOR SUMMARY JUDGMENT (DOC. NO. 33)
Paschal filed a Motion for Summary Judgment on March 27, 2017. (Doc. No.

24). On April 18, 2017, Santili filed an Objection to Paschal’s Motion for Summary
Judgment, pointing out that the Motion for Summary Judgment was procedurally
deficient because it was not accompanied by a memorandum of law or a statement of
facts as required by Local Rule of Civil Procedure 56(a). Paschal subsequently filed a
Motion to Amend his Motion for Summary Judgment on June 6, 2017, in an effort to

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address these shortcomings. Because the proposed amendment does not alter the
substance of Paschal’s Motion for Summary Judgment, and because the Motion for
Summary Judgment and the Motion to Amend it were both filed well before the
dispositive motions deadline of July 20, 2017, see Martinez v. Quality Value
Convenience, Inc., 63 F. Supp. 2d 651, 655 (E.D. Pa.) (discussing timeliness
requirement for amendment of motions), Paschal’s Motion to Amend his Motion for
Summary Judgment is GRANTED. The Clerk shall docket a copy of the Motion to
Amend the Motion for Summary Judgment as a Local Rule 56(a)1 Statement and a
Memorandum of Law in Support of the Motion for Summary Judgment.
III.

MOTION FOR SUMMARY JUDGMENT (DOC. NO. 23)
Paschal moves for summary judgment on all claims in the Complaint. In a

motion for summary judgment, the burden is on the moving party to establish that there
are no genuine issues of material fact in dispute and that he is “entitled to judgment as a
matter of law.” Rule 56(a), Fed. R. Civ. P. A fact is “material” if it “might affect the
outcome of the suit under the governing law,” and is “genuine” if “a reasonable jury
could return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
In support of his Motion for Summary Judgment, Paschal re-iterates the facts set
forth in the Complaint and attaches exhibits that he claims support the facts. He asserts
that he has exhausted his administrative remedies as to his claims and is entitled to
summary judgment as a matter of law.

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As described above, Santili objects to the Motion for Summary Judgment on the
ground that Paschal did not submit a Local Rule 56(a)1 Statement or a memorandum in
support of his motion. Subsections 1 and 4 of Local Rule 56(a) require that a motion for
summary judgment be accompanied by memorandum and a Local Rule 56(a)1
Statement. The “‘Local Rule 56(a)1 Statement,’ [must] set[s] forth in separately
numbered paragraphs meeting the requirements of Local Rule 56(a)3 a concise
statement of each material fact as to which the moving party contends there is no
genuine issue to be tried.” See id. at 1. Local Rule 56(a)3 requires that each statement
in the Rule 56(a)1 Statement “be followed by a specific citation to (1) the affidavit of a
witness competent to testify as to the facts at trial and/or (2) evidence that would be
admissible at trial.”
Although Paschal’s amendment to the Motion for Summary Judgment attempts
to remedy the defects in his original Motion for Summary Judgment, the Local Rule
56(a)1 Statement does not meet the requirements of Local Rule 56(a)1 or 3. Each
paragraph includes multiple statements instead of one concise statement of fact as
required by Local Rule 56(a)1. In addition, some of the statements are not statements
of fact, but rather are arguments made in support of the Motion for Summary Judgment.
Furthermore, the first and second paragraphs are not supported by a reference to
specific evidence as required by Local Rule 56(a)3. See id.
As indicated above, Paschal has now filed a memorandum in support of his
Motion for Summary Judgment. Thus, the Motion for Summary Judgment complies with

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the requirement that a memorandum of law be filed in support of a motion for summary
judgment pursuant to Local Rule 56(a)1 and 4.
In the conclusion of his Motion for Summary Judgment, Paschal argues that the
failure of the defendant to deny his allegations in the Answer to the Complaint entitles
him to judgment as a matter of law because there are no factual issues in dispute. See
Mot. Summ. J., Doc. No. 23 at 3. Under Rule 8(b)(5), Fed. R. Civ. P., a defendant may
respond to an allegation in a complaint by stating that he or she “lacks knowledge or
information sufficient to form a belief about the truth of [the] allegation.” Such a
“statement has the effect of a denial.” Id. Santili filed an Answer that addresses the
allegations in the Complaint. See Answer, ECF No. 14. Santili admitted one allegation
pertaining to the fact that prison officials did not discipline him for any alleged
misconduct in connection with the altercation between Paschal and Inmate Thulin,
denied two other allegations, and stated that he lacked sufficient information upon which
to form a belief as to the truth of the remainder of the allegations. See id. at 1–2. The
answer also included affirmative defenses. See id. at 3. The one allegation that Santili
admitted was true does not demonstrate a lack of factual issues in dispute.
Paschal also contends that the exhibits to his Motion for Summary Judgment and
Memorandum in Support of the Motion, demonstrate that he is entitled to summary
judgment. The exhibits consist of: copies of the incident and medical incident reports
documenting the altercation between Paschal and Inmate Thulin, a handwritten copy of
the inmate request that Paschal allegedly sent to Santili on November 11, 2015, two
pages from an Department of Correction administrative directive, Santili’s Answer to the

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Complaint, and Santili’s Responses to Paschal’s Second Request for Admissions. This
documentary evidence, in of itself does not demonstrate that there are undisputed
issues of material facts with regard to the claims of deliberate indifference to safety and
failure to protect.
The claim in this action relates to Santili’s alleged knowledge of a risk of harm to
Paschal and his failure to protect Paschal from that harm. The duty of prison officials to
make reasonable efforts to ensure inmate safety includes taking appropriate action “to
protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan,
511 U.S. 825, 832–33 (internal quotation marks omitted). To state a failure to protect or
deliberate indifference to safety claim under the Eighth Amendment, an inmate must
demonstrate both that “he [was] incarcerated under conditions [that] pos[ed] a
substantial risk of serious harm” and that the defendant prison officials possessed
culpable intent, that is, the officials knew that he faced a substantial risk to his health or
safety and disregarded that risk by failing to take corrective action. Id. at 834, 837.
At the pleading stage, a plaintiff may rely on an allegation that he sent a letter or
request to a defendant “at an appropriate address and by appropriate means” to show
that the defendant became aware of the contents of the letter regarding unconstitutional
conditions of confinement, but failed to take action to remedy the conditions. Grullon v.
City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013). Once a plaintiff moves for
summary judgment, however, he must provide evidence to support his claim that the
defendant in fact received the letter, had actual knowledge of the risk of harm or
unconstitutional conditions, and failed to make any effort to remedy the conditions or to

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prevent or protect the plaintiff from the harm. See Farmer, 511 U.S. at 836–37
(subjective prong of Eighth Amendment standard requires that the charged official act or
fail to act while actually aware of a substantial risk to inmate safety or health); Cash v.
County of Erie, 654 F.3d 324, 241 n. 8 (2d Cir. 2011) (in proving a prison conditions
claim under the Eighth or the Fourteenth Amendment, “deliberate indifference is a
subjective standard requiring proof of actual knowledge of risk by the prison official.”).
Attached to the Motion for Summary Judgment is a handwritten copy of the
request that Paschal alleges he sent to Santili on November 11, 2015. Paschal has not,
however, submitted evidence to support his allegation that Santili received this written
request in time to prevent the altercation between himself and Inmate Thulin. Instead,
he contends that the court should assume that Santili received the request prior to the
altercation and should have investigated his allegations and taken steps to keep him
safe.
In the short section titled “Memorandum of Law/Statement” included in the
amendment to the Motion for Summary Judgment, Pascal argues that Santili has
conceded that he received the inmate request dated November 11, 2015, and was on
notice of the threat from Inmate Thulin prior to the assault. Paschal states that Santili
admitted, in his response to a second request for admissions, that he had received
inmate request forms that were actually received by him on November 12, 2015.
Paschal has submitted a copy of Santili’s responses to the second request for
admissions as an exhibit to the memorandum in support of the motion for summary
judgment. See Exs., Doc. No. 34.

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In response to the Motion for Summary Judgment, Santili has filed an Affidavit.
See Obj. Mot. Summ. J., Ex. 1, Doc. No. 25-1. In that Affidavit, Santili denies ever
receiving the request regarding Paschal’s concerns that Inmate Thulin might cause him
harm and was not otherwise aware of any problems between Paschal and Inmate
Thulin prior to the altercation between the Paschal and Thulin. See id., Santili Aff. ¶¶ 46. Santili has also filed a Local Rule 56(a)2 Statement in response to Paschal’s Local
Rule 56(a)1 Statement in which he denies ever receiving or admitting to having received
the November 11, 2015 inmate request. See Local Rule 56(a)2 Statement, Doc. No. 40
at 1-2.
In the response to the Second Request for Admissions, Santili admits only that
he received inmate requests that he actually received on the dates of November 12 –
16, 2015. See Ex. 2, Doc. No. 34 at 4(E)-(G); Ex. 3. Doc. No. 35-3 at 2(E)-(G) & 3(H)(I). Because Santili states in his Affidavit that he never received the November 11, 2015
inmate request from Paschal, there is a material issue of fact in dispute regarding
whether Santili had knowledge of a serious risk of harm to Paschal prior to the
altercation between Paschal and Inmate Thulin. Paschal has not shown that there is an
absence of material facts in dispute regarding the second prong of the Eighth
Amendment standard or that he is entitled to judgment as a matter of law. Thus, he has
not met his burden under Rule 56(a), Fed. R. Civ. P. The Motion for Summary
Judgment is therefore denied.

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III.

MOTION FOR AN ORDER OF PROTECTIVE CUSTODY (DOC. NO. 22)
Paschal states that he has been placed in the administrative segregation

program at Northern. He is currently in phase one of the program. He claims that
several other prisoners have threatened to kill him or to have him killed when he
transitions to phase two of the program. Paschal states that phase two of the
administrative segregation program is less restrictive. He believes that it will be not be
difficult for the inmates who have threatened to harm him to carry out their threats after
prison officials determine that he may progress to phase two.
Paschal has reported the threats to his safety to his unit manager, the director of
security, the director of classification and population management and mental health
staff at Northern. He claims that no staff member has responded to his claims that
other inmates are threatening to harm him. He seeks an order directing the Department
of Correction to place him in protective custody.
As indicated above, the case proceeds against Correctional Treatment Officer
Santili in his individual capacity only. As such, Santili cannot provide official capacity
relief to Paschal.
In addition, the claim against Santili relates to an incident that occurred at Garner
Correctional Institution in November 2015. The relief sought in the Motion for Protective
Order is unrelated to the allegations against the sole defendant named in the complaint
and would involve the court’s interference with the management of the prison in which
Paschal is now confined. It would be inappropriate for the court to enter an order with
regard to claims that are unrelated to the claim and the defendant in the lawsuit before

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the Court. See De Beers Consol. Mines Ltd. v. United States, 325 U.S. 212, 220 (1945)
(preliminary injunction appropriate to grant intermediate relief of “the same character as
that which relief may be granted finally,” but inappropriate where the injunction “deals
with a matter lying wholly outside the issues in the suit.”); Omega World Travel, Inc. v.
Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (“a preliminary injunction may
never issue to prevent an injury or harm which not even the moving party contends was
caused by the wrong claimed in the underlying action”); Lewis v. Johnson, No. 08-CV482(TJM)/ATB), 2010 WL 1268024 (N.D.N.Y. Apr. 1, 2010) (denying motion for
preliminary injunction based on actions taken by staff at Great Meadow Correctional
Facility in 2010, where complaint alleged wrongdoing by staff at Franklin and Upstate
Correctional Facilities in 2006 and 2007).
Furthermore, counsel for the Santili has filed a Memorandum in Opposition to the
Motion in which he represents to the court that he contacted prisoner officials at
Northern regarding Paschal’s concerns for his safety. See Obj. Mot. Protective Order,
Doc. No. 26 at 3. Counsel relates that, on April 7, 2017, a correctional counselor
became aware of Paschal’s claims regarding his safety and communicated those
concerns to Paschal’s unit manager. See id. Prison officials have prepared a
Protective Custody package for Paschal, but Paschal’s unit manager is recommending
that the request for protective custody be denied because Paschal is currently on
single-cell status in phase one of the administrative segregation program. See id. It is
apparent that officials at Northern have responded to Paschal’s concerns and have
concluded that he is not currently in danger of imminent harm.

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Paschal is not precluded from making staff at Northern aware of any safety
concerns that arise in the future. In addition, when Paschal progresses to phase two,
he may address any concerns about being celled with another inmate with prison
officials at that time. For all of the reasons stated above, the Motion seeking injunctive
relief in the form of an order directing the Department of Correction to place Paschal on
protective custody status is denied.
IV.

MOTION FOR APPOINTMENT OF COUNSEL (DOC. NO. 31)
On April 10, 2017, the court denied Paschal’s second Motion for Appointment of

Counsel without prejudice to refiling at a later time because he had not demonstrated
that he had made sufficient attempts to find counsel to assist or represent him. See
Rul. Mot. Appoint Counsel, Doc. No. 24. Paschal renews his Motion and states that he
called two law firms in March 2017, and made a follow up call to one of the firms earlier
this month. No one from either firm has contacted him either in writing or by telephone.
Paschal states that he is still waiting to hear back from an attorney at the Inmate
Legal Aid Program. The attorney has been reviewing Paschal’s Complaint to determine
its merit and previously sent him copies of the Federal Rules governing discovery.
Paschal indicates that he is in the process of conducting discovery and has served
discovery requests on Santili. Paschal does not indicate that he attempted to telephone
or to write to this attorney since the court denied the prior motion for appointment of
counsel in April 2017. Although the attorney at the Inmate Legal Aid Program may not
be able to represent Paschal in this action, she may be able to answer questions that he
might have about conducting further discovery.

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The court concludes that Paschal has not shown that he unable to secure legal
assistance on his own. If he seeks further assistance in conducting discovery in this
matter, he may write to or call the Inmate Legal Aid Program. Accordingly, the Motion
for Appointment of Counsel is denied without prejudice. See Hodge v. Police Officers,
802 F.2d 58, 61 (2d Cir. 1986).
IV.

CONCLUSION
The Motion to Amend the Motion for Summary Judgment (Doc. No. 33) is

GRANTED. The Clerk shall docket a copy of the Motion to Amend (Doc. No. 33) as a
Memorandum and Local Rule 56(a)1 Statement in support of the Motion for Summary
Judgment (Doc. No. 23). The Motion to Amend to Add Relief (Doc. No. 21), the Motion
for Summary Judgment (Doc. No. 23), and the Motion for Protective Order (Doc. No.
22) are DENIED. Paschal may pursue claims regarding conditions of confinement at
Northern in a separate action.
The Motion for Appointment of Counsel (Doc. No. 31) is DENIED without
prejudice to refiling at a later stage of litigation. Any renewal of this Motion shall be
accompanied by a summary of any attempts to obtain counsel or legal assistance,
including the names of the attorneys contacted, the dates upon which Paschal made
those contacts, and the reasons why assistance was unavailable.
On May 23, 2017, the Court granted Paschal’s Motion for Extension of Time to
complete discovery. The new deadline for completion of discovery is September 19,
2017. The deadline for filing summary judgment motions is extended to October 19,
2017.

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SO ORDERED.
Dated at New Haven, Connecticut this 6th day of July, 2017.

/s/ Janet C. Hall__________
Janet C. Hall
United States District Judge

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