McClendon v. Maldonado et al

Filing 12

INITIAL REVIEW ORDER. Discovery due by February 27, 2018; Dispositive Motions due by March 29, 2018. Signed by Judge Stefan R. Underhill on 08/31/2017. (Jamieson, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SEVILLE K. MCCLENDON,
Plaintiff,

No. 3:16-cv-02136 (SRU)

v.
WARDEN MALDONADO, et al.,
Defendants.
INITIAL REVIEW ORDER
Seville K. McClendon is incarcerated at the Carl Robinson Correctional Institution. He
has filed a pro se complaint under 42 U.S.C. § 1983 against Correctional Officer Smiley,
Lieutenant Perez, and Warden Maldonado, as well as a motion for appointment of counsel.
I.

Complaint [Doc. No. 1]
Under section 1915A of Title 28 of the United States Code, I must review prisoner civil

complaints and dismiss any portion of the 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. 28 U.S.C. § 1915A. Although detailed allegations are not required, the
complaint must include sufficient facts to afford the defendants “fair notice” of the claims and
grounds upon which they are based and to “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Conclusory” allegations are not
sufficient. 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. Nevertheless, it is
well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise
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the strongest arguments that they suggest.’” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.
2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also
Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010) (discussing special rules of solicitude
for pro se litigants).
The following allegations are taken from McClendon’s complaint, Doc. No. 1, and
assumed to be true for the purposes of this ruling. See Iqbal, 556 U.S. at 679. On June 13, 2016,
McClendon took a shower at Osborn Correctional Institution. When he finished taking a shower,
he asked another inmate to request that an officer release the shower door. Officer Smiley came
to the shower and verbally harassed McClendon about his genitals, made other sexually
derogatory comments, and refused to open the shower door. McClendon remained in the shower
until he had the opportunity to ask another inmate to request that his shower door be opened.
After McClendon’s release from the shower he attempted to speak to Officer Smiley
regarding her reasons for refusing to open the shower door and verbally harassing him. Officer
Smiley indicated that she was not required to immediately respond to inmate requests.
McClendon asked Officer Smiley if he could speak to a lieutenant because he sought to assert a
sexual harassment claim against her.
Officer Smiley then issued McClendon a disciplinary report for flagrant disobedience.
Lieutenant Perez spoke to McClendon in his office. McClendon accused Officer Smiley of
sexually harassing him, stated that he did not feel safe and requested to make a statement to the
Connecticut State Police and to assert a claim under the Prison Rape Elimination Act (“PREA”).

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Lieutenant Perez stated that he would not comply with McClendon’s requests and issued
an order that McClendon be transferred to a cell in the restrictive housing unit pursuant to the
disciplinary report issued by Officer Smiley for flagrant disobedience. Before his placement in
the restrictive housing unit, officers escorted McClendon to the medical unit. McClendon
informed staff members in the medical unit that Officer Smiley had sexually harassed him.
After being placed in a cell in the restrictive housing unit, McClendon related his allegations of
sexual harassment to a member of the mental health unit. In response to those allegations, the
mental health unit staff member sought the approval of Lieutenant Perez to move McClendon to
a different cell to be monitored more closely. Lieutenant Perez authorized the transfer of
McClendon to a new cell as well as the removal of his clothing and catheter and his placement in
in a special gown. McClendon remained in the cell overnight.
When a mental health physician spoke to McClendon the next morning, she ordered
officials to move McClendon to a regular cell in the restrictive housing unit. During his stay in
the restrictive housing unit, McClendon sent a request to Warden Maldonado regarding the
sexual harassment by Officer Smiley and actions of Lieutenant Perez, but did not receive a
response.
Four days after his arrival in the restrictive housing unit, Captain Colon visited
McClendon and listened to his allegations of sexual harassment by Officer Smiley. After
reviewing the videotapes of the incidence, Captain Colon started the process of filing a PREA
complaint on McClendon’s behalf against Officer Smiley. McClendon remained in the restrictive
housing unit for nine more days before a counselor came to speak to him about reducing the

3

disciplinary report to a Class B offense. The counselor informed McClendon that if he pleaded
guilty to the infraction, he would be released from restrictive housing. McClendon pleaded guilty
to the Class B offense and prison officials released him from the restrictive housing unit.
McClendon then sent a request to Warden Maldonado seeking a dismissal of the
disciplinary report altogether. The warden did not respond to the request.
On June 28, 2016, a Connecticut State Trooper came to Osborn to speak to McClendon
regarding his claim of sexual harassment against Officer Smiley. The Trooper took McClendon’s
statement and filed a report.
Two days later, prison officials transferred McClendon to Carl Robinson Correctional
Institution. No one responded to McClendon’s grievances against Officer Smiley or Lieutenant
Perez and officials did not dismiss the disciplinary report.
A. Official Capacity Claims
McClendon seeks monetary damages, restoration of his good time credits and an order
directing the State of Connecticut to file criminal charges against the defendants. For the reasons
set forth below, all official capacity claims are dismissed.
To the extent that McClendon seeks monetary damages from the defendants in their
official capacities, that claim is barred by the Eleventh Amendment. See Kentucky v. Graham,
473 U.S. 159, 169–70 (1985) (Eleventh Amendment, which protects the state from suits for
monetary relief, also protects state officials sued for damages in their official capacities); Quern
v. Jordan, 440 U.S. 332, 342 (1979) (Section 1983 does not override a state’s Eleventh

4

Amendment immunity). The claim for monetary damages against the defendants in their official
capacities is dismissed pursuant to 28 U.S.C. § 1915A(b)(2).
A victim of allegedly criminal conduct is not entitled to a criminal investigation or the
prosecution of the alleged perpetrator of the crime. See Leeke v. Timmerman, 454 U.S. 83 (1981)
(per curiam) (inmates alleging beating by prison guards lack standing to challenge prison
officials’ request to magistrate not to issue arrest warrants); Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.”); McCrary v. County of
Nassau, 493 F. Supp. 2d 581, 588 (E.D.N.Y. 2007) (“A private citizen does not have a
constitutional right to compel government officials to arrest or prosecute another person.”);
Osuch v. Gregory, 303 F. Supp. 2d 189, 194 (D. Conn. 2004) (“An alleged victim of a crime
does not have a right to have the alleged perpetrator investigated or criminally prosecuted.”).
Thus, I cannot award McClendon the relief he seeks in the form of an order directing the
Connecticut State Police or the State’s Attorney’s Office to file criminal charges against the
defendants related to their conduct as described in the complaint. The request for relief seeking
to have the defendants criminally prosecuted is dismissed. See 28 U.S.C. § 1915A(b)(1).
McClendon claims that he lost good time credit as a result of pleading guilty to the Class
B disciplinary report. Because good time credit may no longer be earned by inmate who
committed a crime on or after October 1, 1994, the court construes McClendon’s claim as a loss
of Risk Reduction Earned Credits (“RREC”). See Conn. Dep’t of Corr. Admin. Directive
4.2(6)(A)(4) (2012), available at http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0402.pdf

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(“Statutory Good Time is NOT authorized” for “[s]entences for an offense committed on or after
October 1, 1994.”). If an inmate was convicted of a crime committed after October 1, 1994,
prison officials may forfeit the inmate’s RREC as a disciplinary sanction. See Admin. Directive
4.2A(11) (2013), available at http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0402a.pdf. As of
January 1, 2016, “RREC that is forfeited shall not be restored.” See id. Thus, the plaintiff has no
right to the restoration of the RREC he lost as a result of the disciplinary sanction he received
after pleading guilty to the Class B offense. This claim for injunctive relief is dismissed.1 See 28
U.S.C. § 1915A(b)(1).
B. PREA Claim

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Even if McClendon’s forfeited RREC could be restored, it is a sanction that affects the duration
of his confinement. See Admin. Directive 4.2A(4) & (6) (RREC could affect an inmate’s
discharge date by up to five (5) days a month if in compliance). Any challenge to the duration or
validity of a plaintiff's incarceration or confinement should be brought in a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 489–90
(1973) (habeas corpus was appropriate remedy for inmates seeking restoration of good-conducttime credits which would shorten the length of their confinement in prison); Jenkins v. Haubert,
179 F.3d 19, 23 (2d Cir. 1999) (holding that “where the fact or duration of a prisoner’s
confinement is at issue, § 1983 is unavailable, and only [habeas relief under 28 U.S.C.] §
2254(b) with its exhaustion requirement may be employed”). Because a request directing the
defendants to credit McClendon’s sentence with the RREC lost as a result of the sanction
imposed for his pleading guilty to the Class B offense cannot be granted in section 1983 action,
this claim for injunctive relief is dismissed without prejudice. See 28 U.S.C. § 1915A(b)(1).
In addition, it would be inappropriate to construe this action as a habeas petition because
McClendon has not alleged that he has met the exhaustion requirement for filing a section 2254
petition. A prerequisite to habeas corpus relief in federal court is the exhaustion of all available
state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. §
2254(b)(1)(A). There are no facts to suggest that McClendon filed a state habeas petition seeking
the return of the good time credits that he lost as a sanction for pleading guilty to the Class B
offense.
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McClendon asserts that on June 13, 2016, he informed Lieutenant Perez that Officer
Smiley had sexually harassed him and that he sought to file a claim under the PREA. Lieutenant
Perez indicated that he would not assist McClendon in filing a PREA claim. A week or so later,
Captain Colon initiated a PREA complaint on McClendon’s behalf.
There is nothing in the PREA to suggest that Congress intended to create a private right
of action for inmates to sue prison officials for non-compliance with the Act. See Chao v.
Ballista, 772 F. Supp. 2d 337, 341 n.2 (D. Mass. 2011) (collecting cases and noting that “every
court to address the issue” has held that the PREA does not allow a private cause of action);
Chinnici v. Edwards, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008) (“[T]he PREA confers no
private right of action. The PREA is intended to address the problem of rape in prison, authorizes
grant money, and creates a commission to study the issue.”). The Act is intended to compile data
and statistics concerning incidences of prison rape and to develop and implement national
standards for the detection, prevention, reduction, and punishment of prison rape. See PREA, 42
U.S.C. §§ 15602–03, 15606–07. The Act does not grant any specific rights to inmates. The
United States Supreme Court has held that in the absence of “an ‘unambiguous’ intent to confer
individual rights,” such as a right to sue, courts will not imply such a right in a federal funding
provision. Gonzaga Univ. v. Doe, 563 U.S. 273, 280 (2002).
Because the PREA does not provide a private right of action, the allegations that
defendant Perez refused to investigate or file a PREA claims on behalf of McClendon does not
state a claim upon which relief may be granted. The claim asserted under the PREA is dismissed.
See 28 U.S.C. § 1915A(b)(1).

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C. Due Process Claim
McClendon alleges that on June 13, 2016, Officer Smiley issued him a disciplinary report
for flagrant disobedience after he complained that she had sexually harassed him and had refused
to release him from the shower. McClendon contends that the allegations against him in the
disciplinary report were false. Lieutenant Perez transferred McClendon to the restrictive housing
unit due to the issuance of the disciplinary report. Approximately thirteen days after being placed
in the restrictive housing unit, a counselor informed McClendon that the initial disciplinary
charge was being reduced to a Class B offense. McClendon pleaded guilty to the Class B offense
in exchange for his release from the restrictive housing unit.
McClendon claims that after his release from the restrictive housing unit, he sent a
request to Warden Maldonado seeking a dismissal of the disciplinary report altogether. The
warden did not respond to the request.
McClendon complains that Warden Maldonado should have dismissed the disciplinary
report that had been reduced to a Class B offense because Officer Smiley had lied about the
conduct that formed the basis of the issuance of the original disciplinary report charging him
with a Class A offense. It is well-settled, however, that an “inmate has no general constitutional
right to be free from being falsely accused in a misbehavior report.” Boddie v. Schnieder, 105
F.3d 857, 862 (2d Cir. 1997) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (“The
prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly
accused of conduct which may result in the deprivation of a protected liberty interest”)).

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Furthermore, McClendon chose to forgo a hearing on the reduced Class B offense and
instead agreed to plead guilty to the offense because he sought immediate release from the
restrictive housing unit. There are no allegations that the defendants or any other prison official
denied him any procedural due process protections in connection with the disposition of the
disciplinary report for the reduced Class B charge. Thus, McClendon has not stated a violation of
his due process rights against Warden Maldonado or the other defendants. See Best v. Smith,
2014 WL 4782707, at *3 (D. Conn. Sept. 24, 2014) (concluding claim that inmate’s procedural
due process “rights were violated by the filing of a false disciplinary ticket, to which he
ultimately pleaded guilty, [was] unavailing”) (citing Coleman v. Sutton, 530 F. Supp. 2d 451,
453 (W.D.N.Y. 2008) (“[E]ven viewing the record in the light most favorable to plaintiff, the
undisputed facts establish that defendants are entitled to summary judgment. For one thing,
plaintiff pleaded guilty to the charge[s] in the misbehavior report filed against him. . . . That
alone defeats any claim based on the issuance of the report.”), aff’d, 355 F. App’x 566 (2d Cir.
2009)). The due process claim is dismissed. See 28 U.S.C. § 1915A(b)(1).
D. Eighth Amendment Claims
McClendon attempts to raise a number of claims under the Eighth Amendment. He
alleges that Officer Smiley sexually harassed him and refused to release him from the shower.
When McClendon stated that he wanted to report her conduct to a lieutenant, Officer Smiley
issued him a disciplinary report for flagrant disobedience. Lieutenant Perez refused to investigate
McClendon’s allegations or arrange for a visit between McClendon and a Connecticut State
Trooper or facilitate the filing of PREA claim against Officer Smiley. Instead, he sent

9

McClendon to the restrictive housing unit pursuant to the disciplinary report that had been issued
by Officer Smiley. Later that day, Lieutenant Perez approved McClendon’s placement in a
special cell in the restrictive housing unit without his catheter until the following morning.
a. Sexual Harassment
The Second Circuit has held that “sexual abuse of a prisoner by a corrections officer may
in some circumstances violate the prisoner’s right to be free from cruel and unusual
punishment.” Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). Thus, “allegations of
[sexual] abuse” are sometimes “cognizable as Eighth Amendment claims.” Id. Nevertheless, the
prisoner must allege “a harm of federal constitutional proportions,” which—the Second Circuit
has concluded—requires more than “isolated episodes of harassment and touching.” Id.
Here, McClendon alleges that Officer Smiley approached him while he was in the
shower, made sexually derogatory comments, and refused to open the shower door. The acts
alleged “are despicable and, if true, . . . may potentially be the basis of state tort actions.” See id.
But, much like the “small number of incidents in which [a prisoner] allegedly was verbally
harassed, touched, and pressed against without his consent” in Boddie, the “insolated incidents”
described by McClendon do not give rise to a viable Eighth Amendment claim. See id.; cf.
Holland v. City of New York, 197 F. Supp. 3d 529, 547 (S.D.N.Y. 2016) (Eighth Amendment
claim of sexual harassment requires “at the very least, alleg[ations of] egregious sexual
conduct”); Jones v. Harris, 665 F. Supp. 2d 384, 396 (S.D.N.Y. 2009) (“[V]erbal sexual
harassment of a prisoner, without physical contact, does not violate the Eighth Amendment.”);
see also Johnson v. Enu, 2011 WL 3439179, at *14 (N.D.N.Y. July 13, 2011) (noting that

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Boddie “dismissed as inadequate a prisoner’s claim[s] that a female corrections officer made a
possible pass at him, squeezed his hand, touche[d] his penis[,] called him a ‘sexy black devil,’
pressed her breasts against his chest, and pushed her vagina against his penis” (citing Boddie,
105 F.3d at 859–61)). Therefore, I dismiss McClendon’s Eighth Amendment claim for sexual
harassment against Officer Smiley pursuant to 28 U.S.C. § 1915A(b)(1).
b. Deliberate Indifference to Safety
To state an Eighth Amendment claim for deliberate indifference to safety, McClendon
must allege that he was “incarcerated under conditions posing a substantial risk of serious harm”
and that the defendants were “‘deliberate[ly] indifferen[t]’ to [his] health or safety.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1991)). The
harm alleged “must be, objectively, sufficiently serious,” meaning that it “must result in the
denial of ‘the minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981)) (other internal quotation marks omitted). Moreover, the defendants’
state of mind must involve “more than mere negligence.” Id. at 835. The higher standard of
“deliberate indifference” requires that “the official know[] of and disregard[] an excessive risk to
inmate health or safety.” Id. at 835, 837.
I held above that the sexual harassment alleged by McClendon did not violate the Eighth
Amendment because it was not “objectively, sufficiently serious.” Cf. Boddie, 105 F.3d at 861.
Even accepting as true that Lieutenant Perez and Warden Maldonado “kn[ew] of and
disregard[ed]” McClendon’s complaints of sexual harassment by Officer Smiley, they cannot
have “ha[d] knowledge that [McClendon] face[d] a substantial risk of serious harm” because

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Officer Smiley’s alleged conduct was not “sufficiently serious.” See Hayes v. N.Y.C. Dep’t of
Corrs., 84 F.3d 614, 621 (2d Cir. 1996) (emphasis added); Boddie, 105 F.3d at 861. Thus,
McClendon does not state plausible claims under the Eighth Amendment against Lieutenant
Perez and Warden Maldonado on a “deliberate indifference” theory, and I dismiss those claims
under 28 U.S.C. § 1915A(b)(1).
c. Unconstitutional Conditions of Confinement
“The conditions of a prisoner’s confinement can give rise to an Eighth Amendment
violation.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002). To state an Eighth Amendment
claim for unconstitutional conditions of confinement, an inmate must allege sufficient facts to
plausibly demonstrate that prison officials failed to provide for the inmate’s “basic human
needs—e.g., food, clothing, shelter, medical care, and reasonable safety.” DeShaney v.
Winnebago Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). The prisoner must show both “that
the prison officials’ transgression was ‘sufficiently serious’” and also “that the officials acted, or
omitted to act, . . . with ‘deliberate indifference to inmate health or safety.’” Phelps, 308 F.3d at
185 (quoting Farmer, 511 U.S. at 834).
I have ruled that the sexual harassment to which McClendon allegedly was subjected was
itself not “sufficiently serious” to violate the Eighth Amendment. See Boddie, 105 F.3d at 861.
Accordingly, prison officials’ failure to prevent that harassment cannot have been “sufficiently
serious” to violate McClendon’s constitutional rights. The officials’ alleged indifference to
McClendon’s claims of sexual harassment, though hardly commendable, falls far short of
“depriv[ing] prisoners of their ‘basic human needs’” or “expos[ing] prisoners to conditions that

12

‘pose an unreasonable risk of serious damage to [their] future health.’” Phelps, 308 F.3d at 185
(quoting Helling v. McKinney, 509 U.S. 25, 32, 35 (1993)). Thus, McClendon fails to “establish
the objective element of an Eighth Amendment claim,” see id., and I dismiss his claim for
unconstitutional conditions of confinement pursuant to 28 U.S.C. § 1915A(b)(1).
E. First Amendment Retaliation Claim
To state a claim that a “state actor retaliated . . . for exercising a constitutional right,” a
prisoner plaintiff must plausibly allege that (1) “the conduct at issue was constitutionally
protected” and (2) “the protected conduct was a substantial or motivating factor in the prison
officials’ decision to discipline the plaintiff.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996). The Second Circuit has cautioned that “[r]etaliation claims by prisoners are ‘prone to
abuse’ [because] prisoners can claim retaliation for every decision they dislike.” Id. (internal
quotation marks omitted). Thus, “[a] complaint of retaliation that is wholly conclusory can be
dismissed on the pleadings alone.” Id. (internal quotation marks omitted).
McClendon plausibly alleges that his conduct was “constitutionally protected,” because
“retaliation against a prisoner for pursuing a grievance violates the right to petition government
for the redress of grievances guaranteed by the First and Fourteenth Amendments.” Id. at 80.
McClendon also plausibly alleges facts sufficient to “give rise to an inference that the defendants
disciplined [him] in retaliation” for his use of the grievance process. See id. at 81. According to
McClendon, Officer Smiley issued him a disciplinary report after he sought to file a sexual
harassment claim against her. When McClendon spoke to Lieutenant Perez about the alleged
harassment, Lieutenant Perez refused to help McClendon file a PREA claim and instead

13

transferred him to the restrictive housing unit, ordered that McClendon’s catheter be removed,
and placed him in a special gown. Accepting those claims as true, as I must, McClendon has pled
facts sufficient to show that McClendon’s “protected conduct”—his attempt to file a grievance
against Officer Smiley—“was a substantial or motivating factor in his discipline.” Id.; see
Richard v. Fischer, 38 F. Supp. 3d 340, 358 (W.D.N.Y. 2014) (“[T]he filing of a false
disciplinary report is a serious enough action that temporal proximity between an inmate
grievance and the filing of a report is enough to state a retaliation claim.”). Thus, McClendon has
“sufficiently alleged” the elements of a First Amendment retaliation claim: (1) “participation in
protected activity,” namely, “the use of the prison grievance system”; (2) “adverse action on the
part of the defendants”—i.e., “false misbehavior reports” and subsequent punishment—“that
would deter a prisoner of ordinary firmness from vindicating his or her constitutional rights
through the grievance process”; and (3) “a causal connection between the protected activity and
the adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004).
To be sure, the First Amendment does not “guarantee[] prison inmates the right to present
frivolous claims,” see Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), and so to be constitutionally
protected, a prisoner’s grievance must “not [be] frivolous.” Herron v. Harrison, 203 F.3d 410,
415 (6th Cir. 2000); see Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (“[F]iling a nonfrivolous grievance is a constitutionally protected activity sufficient to support a retaliation
claim.”). Here, although I have held that McClendon’s claims of sexual harassment do not allege
“harm[s] of federal constitutional proportions,” see Boddie, 105 F.3d at 861, they certainly
describe unwelcome and potentially unlawful conduct that he was entitled to petition prison

14

officials to redress. Hence, I conclude that McClendon has alleged plausible First Amendment
retaliation claims against Officer Smiley and Lieutenant Perez. Cf. Richard, 38 F. Supp. 3d at
358 (“Plaintiff’s complaint alleges that his grievances were filed between one to three months
prior to the filing of the alleged retaliatory disciplinary reports . . . . Plaintiff has alleged a nexus
between his protected activity and the alleged adverse action to state a claim for retaliation.”);
Ellis v. Viles, 2010 WL 6465282, at *5–*6 (D. Mass. Aug. 26, 2010) (“It could reasonably be
inferred from the sequence of events that [the prison official] learned about [the prisoner]’s
complaints regarding his sexual misconduct . . . , and then basically set [the prisoner] up and
retaliated against him by charging him with having forged his lower bunk pass and having him
placed in SHU. . . . [B]oth the chronology of events and the relatively short time frame within
which all the acts occurred support an inference of retaliation.”).
F. State Law Defamation Claim
McClendon asserts that defendants Smiley and Perez defamed his character. McClendon
offers no other support for this conclusory allegation.
Under Connecticut law, a defamatory statement is defined as a communication that tends
to “harm the reputation of another as to lower him in the estimation of the community or to deter
third persons from associating or dealing with him.” QSP, Inc. v. Aetna Cas. & Sur. Co., 256
Conn. 343, 356 (2001) (quoting 3 Restatement (Second) Torts § 559). To be actionable,
however, an allegedly defamatory statement “must convey an objective fact, as generally, a
defendant cannot be held liable for expressing mere opinion.” Daley v. Aetna Life & Cas. Co.,
249 Conn. 766, 795 (1999). There are no facts to suggest that either defendant Smiley or Perez

15

issued a statement that harmed the reputation of McClendon, either in the estimation of the
community or by deterring other people from associating with him. The conclusory claim that
defendants Perez and Smiley defamed McClendon’s character is dismissed as lacking an
arguable factual or legal basis. See 28 U.S.C. § 1915A(b)(1).
II.

Motion for Appointment of Counsel [ECF No. 3]
Civil litigants, unlike criminal defendants, do not have a constitutional right to the

appointment of counsel. See Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (district
judges are afforded “[b]road discretion” in determining whether to appoint pro bono counsel for
an indigent litigant in a civil case); 28 U.S.C. § 1915(e)(1) (“The court may request an attorney
to represent any person unable to afford counsel.”) (emphasis added)). The Second Circuit has
stated that before an appointment is even considered in a civil action, the indigent person must
show that he or she is unable to obtain counsel or legal assistance. See Hodge, 802 F.2d at 61.
McClendon states that he called two law firms and someone at each firm indicated he or
she would call McClendon back, but never did so. In July 2016, someone called a law firm on
McClendon’s behalf, but an employee at the firm indicated he or she could not take
McClendon’s case. McClendon does not indicate that he has made any attempts to contact the
Inmate Legal Aid Program2 with regard to any questions he might have about litigating this case.

2

Attorneys at the Inmate Legal Aid Program may be contacted at the following address and
telephone number: Inmate Legal Aid Program, Bansley Anthony Burdo, LLC, 265 Orange
Street, New Haven, CT 06510; 1 [phone].
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I conclude that McClendon has made insufficient attempts to secure legal representation
or assistance on his own. Because there is a possibility that McClendon may be able to secure
legal assistance or representation independently, I deny the motion for appointment of counsel at
this time. See Hodge, 802 F.2d at 61.
III.

Conclusion
The case will proceed on the First Amendment retaliation claim against Officer Smiley

and Lieutenant Perez in their individual capacities.
It is hereby ordered that:
(1)

The claim for monetary damages against the defendants in their official capacities

is DISMISSED pursuant to pursuant to 28 U.S.C. § 1915A(b)(2). The claims for injunctive
relief, the Fourteenth Amendment due process claim, the PREA claim, the Eighth Amendment
claims, and the state law defamation claim are all DISMISSED pursuant to 28 U.S.C. §
1915A(b)(1).
The Motion for Appointment of Counsel [Doc. No. 3] is DENIED without prejudice to
refiling at a later stage of litigation. Any renewal of that 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 McClendon made those contacts and the reasons why
assistance was unavailable.
(2)

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 Correctional
Officer Smiley and Lieutenant Perez and mail a waiver of service of process request packet to

17

each defendant in his or her individual capacity at his or her current work address. On the thirtyfifth (35th) day after mailing, the Clerk shall report to the court on the status of the request. 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 that defendant shall be required to pay the costs of such
service in accordance with Federal Rule of Civil Procedure 4(d).
(3)

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.
(4)

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 should
not be filed with the court.
(5)

All motions for summary judgment shall be filed within seven months (210

days) from the date of this order.
(6)

The Pro Se Prisoner Litigation Office shall send a courtesy copy of the

complaint and this order to the Connecticut Attorney General and the Department of Correction
Legal Affairs Unit.

So ordered.
Dated at Bridgeport, Connecticut, this 31st day of August 2017.

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/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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