Fowler v. Correction et al

Filing 11

INITIAL REVIEW ORDER. As set forth in the attached ruling, the Court enters the following orders:(1) Plaintiff's discrimination and retaliation claims under the ADA and § 504 of the Rehabilitation Act will proceed against defendant Conn ecticut Department of Correction for monetary damages.(2) Plaintiff's First Amendment retaliation claim will proceed against defendants Maldonado, Colon, Griffen, Richardson, Chapdelaine, Hall, and Leightner in their individual capacities fo r monetary damages.(3) Plaintiff's Eighth Amendment deliberate indifference to medical needs claim will proceed against defendants Semple, Gallagher, Maurer, Martucci, Maldonado, Wright, Long, Colon, Santiago, Martin, Zegarzewski, Gillette, Conger, Chapdelaine, Roy, Rule, Gonzalez, Leightner, Marga, Griffen, and Lizon in their individual capacities for monetary damages.(4) Plaintiff's Fourteenth Amendment procedural due process claim will proceed against defendants Semple, Sant iago, Martin, Nemeth, Dousis, Richardson, Conger, Chapdelaine, Rule, Gonzalez, and Congelos in their individual capacities for monetary damages.(5) Plaintiff's Fourteenth Amendment equal protection claim will proceed against defendants Martu cci, Maldonado, Wright, Colon, Santiago, Martin, Zegarzewski, Gillette, and Chapdelaine in their individual capacities for monetary damages.(6) All other claims not listed above are DISMISSED. The Clerk of Court shall dismiss Quiros, Rinal di, Long, Grimaldi, and Collins as defendants.(7) 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 the DOC in its official capacity by delivering the necessary documents in person to the Office of the Attorney General, 55 Elm Street, Hartford, CT 06141. (8) The Clerk shall verify the current work addresses for defendants Semple, Martucci, Maurer, Gallagher, Marga, Vazquez, Maldonad o, Wright, Colon, Lizon, Santiago, Martin, Zegarzewski, Gillette, Conger, Nemeth, Dousis, Richardson, Congelos, Griffen, Chapdelaine, Hall, Roy, Santana, Rule, Gonzalez, and Leightner with the DOC Office of Legal Affairs, mail a waiver of service of process request packet containing the complaint to each defendant at the confirmed address within twenty-one (21) days of this Order, and report to the court on the status of the waiver request on the thirty-fifth (35) day after mailing. If an y defendant fails to return the waiver request, the Clerk shall make arrangements for in-person service by the U.S. Marshals Service on him or her, and the defendant shall be required to pay the costs of such service in accordance with Federal Rule o f Civil Procedure 4(d).(9) 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 they 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.(10) Discovery, pursuant to Federa l Rules of Civil Procedure 26 through 37, shall be completed within seven months (210 days) from the date of this order. Discovery requests need not be filed with the court.(11) All motions for summary judgment shall be filed within eig ht months (240 days) from the date of this order.(12) Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to dispositive motion within twenty-one (21) days of the date the motion was filed. If no response is filed, or the respon se is not timely, the dispositive motion can be granted absent objection.(13) If plaintiff changes his address at any time during the litigation of this case, Local Court Rule 83.1(c)2 provides that plaintiff MUST notify the court. Failure to do so can result in the dismissal of the case. Plaintiff must give notice of a new address even if he is incarcerated. Plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice. It is not enough to just put the new address on a letter without indi cating that it is a new address. If plaintiff has more than one pending case, he should indicate all of the case numbers in the notification of change of address. Plaintiff should also notify defendants or counsel for defendants of his new address. It is so ordered. Signed by Judge Jeffrey A. Meyer on 8/8/2017. (Levenson, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMARR FOWLER,
Plaintiff,
v.

No. 3:17-cv-00848 (JAM)

DEPARTMENT OF CORRECTION, et al.,
Defendants.

INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. § 1915A
Plaintiff Jamarr Fowler is a prisoner in the custody of the Connecticut Department of
Correction. He has filed a complaint pro se and in forma pauperis, against the Connecticut
Department of Correction (“DOC”) and 32 individual prison officials. Plaintiff, who is hearing
impaired, alleges that defendants violated his rights under the Americans with Disabilities Act,
Rehabilitation Act, First Amendment, Eighth Amendment, and Fourteenth Amendment. Based
on my initial review pursuant to 28 U.S.C. § 1915A, I conclude that plaintiff’s complaint should
be served on 28 of the 33 defendants.
BACKGROUND
The following allegations from plaintiff’s complaint are accepted as true for purposes of
the Court’s initial review. Plaintiff has a hearing-related disability.1 On January 29, 2016, he was
transferred to Osborn Correctional Institution (“Osborn”) and was improperly placed in the “EBlock” unit as opposed to the unit for disabled inmates, as previously ordered by a physician, Dr.
Brenton. When plaintiff asked the correctional staff why he was not being placed in the disability
unit, he was told that he had to be placed in E-Block because of a disciplinary report that he

Plaintiff also alleges that he has “another physical disability” in addition to being “hearing
impaired/deaf,” Doc. #1-1 at 7 (¶ 37), but he does not specify what the other physical disability is.
1

1

received at a previous facility. Plaintiff later learned that there was nothing in DOC’s
administrative directives that confirmed what he was told. He immediately filed written
grievances to defendants Maldonado, Wright, and Long, requesting that he be transferred out of
E-Block and housed in the disability unit. No one responded in writing to his complaints. Id. at
7–9 (¶¶ 38–39).
Although E-Block is classified as a “general population” unit, the inmates housed in EBlock are subjected to greater restrictions than those inmates in other units, including the
disabled inmate unit. For example, E-Block inmates are locked in their cells for 22 hours per
day, whereas inmates in the other general population units are outside their cells for the majority
of the day. E-Block inmates may only use the law library twice per month for 45 minutes
whereas other inmates may use it four to five times per week. E-Block inmates are also not
permitted recreation time to exercise, cannot obtain hot water to make food, and are forced to
wear bright yellow jumpsuits as opposed to more comfortable clothing. Id. at 9–10 (¶ 40).
After several weeks in E-Block, plaintiff was transferred to F-Block, another restrictive
housing unit. Again, he was locked in his cell for 22 hours per day. When he was let out of his
cell, he was forced to choose between taking a shower, attending religious services, or using the
telephone. Such a restriction did not apply to other general population inmates. Plaintiff had very
limited access to the telephone, and on the rare occasions when he was permitted to use the
phone, his time was cut short. Plaintiff continued to make verbal complaints and file written
grievances about his treatment. Id. at 11 (¶ 42–43).
After several weeks in F-Block, plaintiff was transferred again—this time to C-Block,
another restrictive housing unit. While housed in C-Block, plaintiff was again subjected to the
same restrictive and punitive treatment as in F-Block. In addition, defendant Colon completely

2

denied plaintiff access to the telephone during the day. When plaintiff filed complaints against
Colon, Colon instructed other correctional officers to falsify disciplinary reports against plaintiff
and to prevent him from using the telephone. Id. at 11–12 (¶¶ 43–45).
Sometime during his placement in C-Block, plaintiff and plaintiff’s family members
contacted defendant Martucci, Director of External Affairs for DOC, and complained about
plaintiff’s treatment. Martucci informed plaintiff and his family that she was going to organize a
meeting between plaintiff, Maldonado, and defendant Gallagher, the Health Services
Coordinator, to “work out a plan that would be good for everybody.” That meeting never
occurred. Gallagher eventually met with plaintiff, but she ended up placing plaintiff on an even
more restrictive housing plan. Id. at 12 (¶ 45).
Plaintiff then sent Martucci a letter, requesting that he be afforded reasonable
accommodations and all of the same rights and privileges as other disabled inmates. Martucci
responded with a letter informing plaintiff that all of his issues “have been thoroughly addressed”
by Maldonado and his facility team. Plaintiff attempted to follow up with Martucci and explain
that none of his issues had been addressed, but his requests were ignored. Id. at 13 (¶ 46).
On April 4, 2016, in retaliation for plaintiff’s filing of grievances, Maldonado transferred
plaintiff to Corrigan Correctional Institution (“Corrigan”), a level-four maximum security prison
that is much more restrictive than Osborn. Plaintiff alleges that Maldonado transferred plaintiff
to Corrigan in order to prevent him from completing the programs he needs in order to be
granted parole. Id. at 13–14 (¶ 47). While at Corrigan, plaintiff was only permitted to use the
telephone on a “handful of occasions.” Id. at 14 (¶ 48). Defendants Santiago, Martin,
Zegarzewski, and Gillette, all employees of Corrigan, told plaintiff that he would not be
permitted to use the telephone during his evening recreation period, on weekends, or on holidays,

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and that he would only be allowed to use the phone “at [his] counselor’s convenience.” Ibid.
These restrictions did not apply to hearing inmates, and they also contradict the DOC’s
administrative directives, which provide that hearing-impaired inmates be permitted additional
time to use the telephone. Ibid.
Plaintiff filed numerous complaints and grievances “to the commissioner’s office” and
within the facility regarding his transfer to Corrigan and the denial of reasonable
accommodations, alleging that defendants Marga, Vazquez, Martin, Zegarzewski, and Santiago
were retaliating against him, but all his complaints went unanswered. In a further effort to punish
plaintiff, Gillette placed plaintiff in the restrictive housing unit under administrative detention for
making eleven phone calls to his family on May 6, 2016. However, because only two of the
eleven calls were answered and the other nine went to voicemail, plaintiff’s actions did not
violate any DOC policy. Id. at 15 (¶ 49).
Plaintiff did not receive a copy of the disciplinary report for the eleven phone calls until
May 11, in violation of DOC’s administrative directives, which required disciplinary reports to
be served on inmates within 24 hours. A correctional officer falsified the date of service on the
report, stating that it was served on May 9. Plaintiff complained to defendants Nemeth and
Dousis (both disciplinary investigators) that he did not receive the report in a timely manner and
that it contained false information. Nemeth and Dousis told plaintiff to direct his complaint to
defendant Conger. When plaintiff complained to Conger, Conger told plaintiff that he believed
Gillette and not plaintiff, and that it was not Conger’s job to decide whether plaintiff was timely
served with a copy of a disciplinary report. Plaintiff then complained to defendants Santiago and
Martin, who responded with a statement to plaintiff that “due process was followed.” Id. at 16 (¶
50).

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On May 12, 2016, Corrigan staff held a hearing regarding plaintiff’s three disciplinary
reports. Defendants Nemeth and Dousis denied plaintiff’s requests to produce witnesses and
documentary evidence in support of his defense and refused to investigate and gather evidence in
connection with the reports. Plaintiff requested a continuance of the hearing so that he could
obtain replacement hearing aids. He also requested that the hearing be conducted in a quieter
room. Defendant Richardson, the hearing officer, denied both requests. When plaintiff
questioned Richardson about his decision, Richardson “kicked [plaintiff] out of the hearing” and
disciplined him with 40 days of punitive segregation, 8 months loss of commissary, 90 days loss
of phone privileges, 60 days loss of jailhouse visits, and 40 days loss of good time credit. Id. at
17 (¶ 51).
Plaintiff appealed Richardson’s decision and disciplinary action to defendant Quiros, the
district administrator. Quiros granted in part and denied in part plaintiff’s appeal, ordering
Santiago to release plaintiff from punitive segregation by June 1, 2016. Again acting in
retaliation, Santiago did not release plaintiff until June 2. While in punitive segregation, plaintiff
was subjected to poor ventilation and extremely cold temperatures, which caused him to suffer
from allergic reactions, infections, and extreme chest pain. He had to be given special medication
in addition to his regular asthma medication “to keep him alive.” Id. at 18 (¶ 52). He was denied
regular access to personal hygiene products, barber services, recreation, and showers. In
addition, correctional staff threw away his legal mail, and defendants Conger, Santiago, Martin,
and Zegarzeski denied plaintiff access to legal books from the law library, causing plaintiff to
lose two of his pro se post-judgment motions for release. Id. at 18–19 (¶ 52).
After he was released from punitive segregation, plaintiff continued to be denied access
to the phone. Santiago, Martin, Gillette, and Zegarzewski often threatened to punish plaintiff if

5

he made too many phone calls. Gillette personally read plaintiff’s incoming and outgoing mail
and monitored his phone conversations. At one point, Gillette told plaintiff that he had learned
about plaintiff’s connections to two particular women, both of whom Gillette falsely claimed had
obtained no-contact orders against plaintiff. Gillette threatened to place plaintiff in restrictive
housing if he contacted the women again. Id. at 19 (¶ 52).
After several months, plaintiff was transferred back to Osborn and placed in E-Block.
Plaintiff alleges that the transfer and placement were the result of a collaborative effort by
defendants Marga, Vazquez, Semple, Maldonado, Santiago, Chapdelaine, Wright, and Colon to
retaliate against plaintiff for the numerous complaints and grievances he had filed throughout his
incarceration. When plaintiff arrived back at Osborn, Colon “forced officers to deny [plaintiff]
access to his reasonable accommodations,” including his use of the TTY telephone. Id. at 20 (¶
53). Colon also unlawfully went through plaintiff’s medical file, obtained records regarding his
medical conditions and treatment plan, and posted copies of those records in the medical unit and
outside plaintiff’s housing unit where other inmates and officers could read them. Plaintiff
immediately complained to Gallagher and Maurer about Colon’s actions. Gallagher directed
Colon to take down the documents but failed to take any other remedial action. Id. at 21 (¶ 53).
In September 2016, Maldonado, Marga, and Vazquez transferred plaintiff back to
Corrigan in an act of retaliation. When he arrived at Corrigan, plaintiff was notified that he was
being immediately sent back to Osborn. Within 24 hours, he arrived back at Osborn and was
placed in the B-Block unit. B-Block houses inmates who work in institutional jobs. While
housed in B-Block, plaintiff was again subjected to 22-hour lockdown and denied rights and
privileges afforded to other B-Block inmates. When he filed more complaints and grievances
about being denied rights and privileges afforded to other B-Block inmates, defendants

6

Maldonado, Wright, Semple, and Griffen informed him that he would have to obtain
employment within the facility to receive the privileges to which he was referring. Plaintiff
replied that he should be entitled to the privileges whether or not he had a job, but defendants did
not respond. Id. at 21–22 (¶ 54).
On December 12, 2016, Colon falsified a disciplinary report against plaintiff, charging
him with “giving false information.” Id. at 22 (¶ 55). On January 18, 2017, Maldonado, Griffen,
and Colon placed plaintiff in restrictive housing as a result of the report. A hearing was held on
January 24, 2017. Defendants Lizon and Maldonado ultimately dismissed the report because
Colon was not authorized to author disciplinary reports against plaintiff due to a department
policy. Despite the dismissal, plaintiff was placed on high-security status in accordance with
Commissioner Semple’s policy that permitted supervisors to place inmates on high-security
status without a hearing. Id. at 23 (¶ 55).
On January 26, 2017, plaintiff’s security level was raised from three to four, and he was
transferred to MacDougall, a level-four maximum security prison where he currently resides. At
MacDougall, plaintiff continues to be “targeted, oppressed, psychologically tortured, [and]
retaliated [and] discriminated against.” Ibid. Plaintiff appealed his placement on high-security
status to Deputy Commissioner Rinaldi. Rinaldi received plaintiff’s appeal on February 2, 2017.
Rinaldi denied the appeal on March 13, but plaintiff did not receive the disposition until March
24, which violated the established timeframe set by DOC. Id. at 23–24 (¶ 55).
On February 7, 2017, defendant Santana issued plaintiff a false disciplinary report for
attempting to attend gym recreation with other inmates in his unit. Santana prohibited plaintiff
from going to gym recreation and charged him with flagrant disobedience. Plaintiff was forced
under duress to plead guilty to the offense, which led to his placement in Q-pod, a punitive

7

segregation housing unit. Plaintiff alleges that this placement was a result of a discriminatory
policy created by defendants Chapdelaine, Santana, and Dousis to restrict gym recreation to
certain inmates only. Furthermore, he alleges that defendants Santana, Chapdelaine, Roy, and
Collins created an “unconstitutionally systematic tactic to punish [plaintiff] [and] unjustly place
him in” a restrictive housing unit by forcing him to plead guilty to the disciplinary charge.
Plaintiff alleges that Commissioner Semple is aware of this conduct and has done nothing to
rectify it. Id. at 24–25 (¶ 56).
After plaintiff was placed in Q-pod, he immediately notified correctional staff that there
were no medical emergency call boxes in the unit and that, because of his medical conditions and
disabilities, he was only supposed to be housed in a unit with a medical emergency call box. As a
result, plaintiff was transferred to M-pod, a general population unit with medical emergency call
boxes inside the cells. But when defendants Chapdelaine and Hall found out that plaintiff had left
Q-pod, they convinced defendant Leightner, the health services administrator, to authorize his
removal from M-pod and place him back in Q-pod. Id. at 26 (¶ 57).
In late February 2017, plaintiff received another false disciplinary report accusing him of
attempting to use the phone without authorization. Defendants Chapdelaine, Gonzalez, Rule,
Roy, and Congelos then employed a “systematic tactic” to punish plaintiff by forcing him into a
restrictive housing unit for 15 days prior to his hearing on the disciplinary report, intentionally
delaying his hearing (and then covering up the fact that it was untimely), finding him guilty of
the disciplinary violation, and then sentencing him to 15 days of punitive segregation, 30 days
loss of recreation, and 90 days loss of phone. Plaintiff appealed the decision on the report to
defendant Quiros, who denied the appeal. While housed in the restrictive Q-pod, plaintiff was
denied rights and privileges afforded to other general population inmates, including gym

8

recreation and sufficient time outside of his cell. Plaintiff alleges that Chapdelaine is keeping
plaintiff housed in Q-pod as a form of retaliatory punishment, and both Semple and Quiros are
aware of Chapdelaine’s actions.
Plaintiff claims that defendants violated his rights under the First, Eighth, and
Fourteenth Amendments to the United States Constitution, Title II of the Americans with
Disabilities Act, and § 504 of the Rehabilitation Act. He seeks monetary relief in the amount of
ten million dollars. He has named 33 defendants in total, including the DOC and 32 prison
officials in their individual capacities.
DISCUSSION
Pursuant to 28 U.S.C. § 1915A(a), the Court must review prisoner civil complaints and
dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon
which relief may be granted, or that seeks monetary relief from a defendant who is immune from
such relief. The Court must accept as true all factual matters alleged in a complaint, although a
complaint may not survive unless its factual recitations state a claim to relief that is plausible on
its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770
F.3d 170, 177 (2d Cir. 2014) (same). Nevertheless, it is well-established that “pro se complaints
‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.’”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101–02
(2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
Discrimination under ADA and Rehabilitation Act
Plaintiff alleges that the DOC and various individual defendants violated Title II of the
Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act by failing to

9

provide him with reasonable accommodations for his hearing disability. To state a prima facie
claim for discrimination under the ADA or the Rehabilitation Act, a plaintiff must allege: (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 exclusion or discrimination was due to his disability. Fulton v.
Goord, 591 F.3d 37, 43 (2d Cir. 2009). “A qualified individual can base a discrimination claim
on . . . failure to make a reasonable accommodation.” Ibid. (internal quotation marks and citation
omitted).
Plaintiff has sued the individual defendants in their individual capacities, but “neither
Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits
against state officials.” Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107
(2d Cir. 2001). Accordingly, I will dismiss plaintiff’s claims under the ADA and the
Rehabilitation Act against the individual defendants.
A plaintiff may, however, bring a Title II ADA claim against a state or its agent in its
official capacity for monetary damages. See Garcia, 280 F.3d at 111. A plaintiff may also bring
an official capacity suit against a state or its agent under § 504 of the Rehabilitation Act. See
Super v. J. D’Amelia & Associates, LLC, 2010 WL 3926887, at *13 (D. Conn. 2010) (explaining
that Connecticut’s continued acceptance of federal funds constitutes a waiver of its immunity
from suit under § 504 of the Rehabilitation Act).
Plaintiff has plausibly alleged a discrimination claim against the DOC under Title II of
the ADA and § 504 of the Rehabilitation Act. His “hearing impairment makes him a ‘qualified
individual’” with a disability. Valanzuolo v. City of New Haven, 972 F. Supp. 2d 263, 273 (D.
Conn. 2013). He alleges that the DOC failed to place him in a special unit for disabled inmates

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and failed to afford him additional time to use the telephone. He also alleges that he was kicked
out of a disciplinary hearing after he requested a continuance so that he could obtain replacement
hearing aids and after he requested a transfer to a quieter room so that he could better hear the
proceedings. Plaintiff’s discrimination claim under the ADA and the Rehabilitation Act will
proceed against the DOC.
Constitutional claims against DOC
In addition to his claims under the ADA and Rehabilitation Act, plaintiff brings claims
against the DOC under 42 U.S.C. § 1983 for violations of his constitutional rights. The DOC is a
state agency and is not considered a person within the meaning of § 1983. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 70–71 (1989). Thus, plaintiff’s § 1983 claims against DOC
are dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Retaliation
Plaintiff claims that defendants Semple, Martucci, Maldonado, Wright, Colon, Santiago,
Martin, Zegarzewski, Gillette, Richardson, Chapdelaine, Roy, Rule, Gonzalez, Collins,
Congelos, Santana, Hall, Vazquez, Leightner, Marga, Griffen, Lizon, and Rinaldi violated his
right to free speech under the First Amendment by retaliating against him for submitting
complaints and grievances.
In order to state a First Amendment free-speech retaliation claim, a plaintiff must
demonstrate that he was engaged in constitutionally protected speech activity, that the defendant
took adverse action against him, and that there was a causal connection between the protected
activity and the adverse action. See Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015).
Filing grievances or lawsuits against correctional staff is protected activity. Davis v. Goord, 320
F.3d 346, 352–53 (2d Cir. 2003).

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Plaintiff has adequately alleged retaliation claims against defendants Maldonado,
Vazquez, Marga, Colon, Griffen, Richardson, Chapdelaine, Hall, and Leightner. Plaintiff
contends that each of these defendants took action against him for filing grievances. Maldonado,
Vazquez, and Marga transferred him to more restrictive and disciplinary facilities and units in
response to his filing of grievances. Colon ordered others to falsify disciplinary reports against
him and deny him access to the telephone, posted copies of his private medical records
throughout Osborn, and authored false disciplinary reports against him. Griffen took part in
placing plaintiff in restrictive housing based on a false disciplinary report. Richardson kicked
him out of his disciplinary hearing and disciplined him harshly. Chapdelaine and Hall convinced
Leightner to take plaintiff out of M-Pod unit and return him to the Q-pod unit to punish plaintiff
for his complaint about the medical emergency call boxes. Because these consequences could
plausibly “deter a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights,” they constitute adverse action. Davis, 320 F.3d at 353. See also Davis v.
Kelly, 160 F.3d 917, 920 (2d Cir. 1998) (prison authorities “may not transfer an inmate in
retaliation for the exercise of constitutionally protected rights”).
As far as the other defendants are concerned, plaintiff’s allegations are either entirely
conclusory or fail to explain how the defendants’ actions were retaliatory in nature. See Riddick
v. Arnone, 2012 WL 2716355, at *6 (D. Conn. 2012) (“Because claims of retaliation are easily
fabricated, the courts consider such claims with skepticism and require that they be supported by
specific facts; conclusory statements are not sufficient”). Thus, plaintiff’s First Amendment
retaliation claims will proceed only against Maldonado, Vazquez, Marga, Colon, Griffen,
Richardson, Chapdelaine, Hall, and Leightner.

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Although plaintiff brings his retaliation claims under the First Amendment, his complaint
can be construed to also raise claims of retaliation under the ADA and the Rehabilitation Act.
Title V of the ADA “prohibits, inter alia, retaliation against any individual who has asserted
rights under the ADA.” Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d
Cir. 1999). The same standards apply to a claim of retaliation under § 504 of the Rehabilitation
Act as under the ADA. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). A
plaintiff states a retaliation claim under the ADA or the Rehabilitation Act by establishing that
“(i) plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was
involved in protected activity; (iii) an adverse decision or course of action was taken against
plaintiff; and (iv) a causal connection exists between the protected activity and the adverse
action.” Weixel v. Bd. of Educ., 287 F.3d 138, 148 (2d Cir. 2002) (internal quotation marks
omitted). Insofar as plaintiff alleges that the DOC retaliated against him for requesting
reasonable accommodations for his hearing disability, the Court will consider plaintiff to have
stated a retaliation claim against DOC under the ADA and the Rehabilitation Act.
Denial of access to courts
To state a claim for denial of access to the courts, a plaintiff must demonstrate that he
suffered an actual injury, see Lewis v. Casey, 518 U.S. 343, 353 (1996)—that is, he must allege
that “defendant’s conduct deprived him of an opportunity to press some nonfrivolous, arguable
cause of action in court.” Brown v. Choinski, 2011 WL 1106232, at *5 (D. Conn. 2011). What
this means is that “the underlying cause of action, whether anticipated or lost, is an element that
must be described in the complaint, just as much as allegations must describe the official acts
frustrating the litigation,” and “the underlying cause of action and its lost remedy must be

13

addressed by allegations in the complaint sufficient to give fair notice to a defendant.”
Christopher v. Harbury, 536 U.S. 403, 415, 416 (2002).
A plaintiff must describe “the predicate claim . . . well enough to apply the ‘nonfrivolous’
test and to show that the ‘arguable’ nature of the underlying claim is more than hope.” Id. at 416.
In this manner, “the complaint should state the underlying claim in accordance with Federal Rule
of Civil Procedure 8(a), just as if it were being independently pursued, and a like plain statement
should describe any remedy available under the access claim and presently unique to it.” Id. at
417–18 (footnote omitted).
Plaintiff alleges that Corrigan, Conger, Santiago, Martin, and Zegarzeski denied him
access to legal books from the law library, causing him to lose two of his pro se post-judgment
motions for release. Plaintiff has not provided a sufficiently detailed description of the
underlying cause of action. Because of the complaint’s sparse allegations, I am unable to
ascertain if the underlying claim was of arguable merit or was frivolous.
Because plaintiff’s claim of denial of access to the courts has not been adequately
pleaded, I will dismiss this claim without prejudice. If plaintiff believes that he is able to allege
specific facts concerning the underlying cause of action that was impeded and to show that this
action would not have been frivolous, then plaintiff may file an amended complaint within 30
days to allege a claim for denial of his constitutional right of access to the courts.
Deliberate indifference to medical needs
It is well established that “[a] prison official’s ‘deliberate indifference’ to a substantial
risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 828 (1994). A deliberate indifference claim has two component requirements. The first
requirement is objective: the alleged deprivation must be serious. The second requirement is

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subjective: the charged officials must act with a subjectively reckless state of mind in their denial
of medical care. See Spavone v. New York State Dept. of Correctional Servs., 719 F.3d 127, 138
(2d Cir. 2013); Hilton v. Wright, 673 F.3d 120, 127 (2d Cir. 2012).
Plaintiff alleges that defendants Semple, Gallagher, Maurer, Martucci, Maldonado,
Wright, Long, Colon, Santiago, Martin, Zegarzewski, Gillette, Conger, Chapdelaine, Roy, Rule,
Gonzalez, Hall, Leightner, Marga, Griffen, and Lizon acted with deliberate indifference to his
medical needs by denying him reasonable accommodations for his disability, forcing him into
restrictive housing units, denying him access to gym recreation, showers, and personal hygiene
products, and subjecting him to conditions that caused him medical problems and pain. Plaintiff
also alleges that defendants denied him reasonable accommodations afforded to other hearingimpaired inmates such as additional telephone time, access to a TTY phone, and access to a
medical call box in case of an emergency. Plaintiff’s hearing impairment may constitute a
“serious medical need” and thus, at this stage, satisfies the objective component of the deliberate
indifference standard. See, e.g., Wheeler v. Butler, 209 F. App’x 14, 16 (2d Cir. 2006) (hearingimpaired plaintiff who was allegedly deprived of hearing aids may state claim for deliberate
indifference); Clarkson v. Coughlin, 898 F. Supp. 1019, 1043 (S.D.N.Y. 1995) (failure to
provide interpretive services and assistive devices for deaf and hearing-impaired inmates
amounted to deliberate indifference). Furthermore, plaintiff alleges that defendants acted
intentionally in an effort to punish him and retaliate against him. The Court will allow plaintiff’s
deliberate indifference claim to proceed against the above-mentioned defendants at this time.
Due Process
Plaintiff claims that various defendants violated his rights under the Due Process Clause
of the Fourteenth Amendment. The Fourteenth Amendment to the United States Constitution

15

provides that a State shall not “deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause protects both a right to
“substantive” due process and a right to “procedural” due process.
The standard analysis for a claim of a violation of procedural due process “proceeds in
two steps: We first ask whether there exists a liberty or property interest of which a person has
been deprived, and if so we ask whether the procedures followed by the State were
constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam).
In the prison context (involving someone whose liberty interests have already been
severely restricted because of his or her confinement in a prison), a prisoner plaintiff must show
that he was subject to an “atypical and significant hardship . . . in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In Sandin, the Supreme
Court concluded that a prisoner who was subject to a disciplinary term of 30 days confinement in
restrictive housing did not sustain a deprivation of a liberty interest that was subject to protection
under the Due Process Clause. Id. at 486. Following Sandin, the Second Circuit has explained
that courts must examine the actual punishment received, as well as the conditions and duration
of the punishment. See Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004).
Plaintiff alleges that he was repeatedly and arbitrarily placed in restrictive housing
following inadequate hearings or, in some cases, no hearing at all. He alleges that the conditions
he experienced in restrictive housing were particularly oppressive (e.g., poor ventilation and
extremely cold temperatures) and that he was denied many rights that were afforded to the other
inmates in the same restrictive housing units. These facts are sufficient at this stage to suggest
that plaintiff was deprived of a liberty interest.

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As to the second step of the analysis, the procedural safeguards to which plaintiff is
entitled before being deprived of a constitutionally significant liberty interest are wellestablished. These requirements include: (1) written notice of the charges; (2) the opportunity to
appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence
in support of the defense, subject to the correctional institution’s legitimate safety and
penological concerns; (3) a written statement by the hearing officer explaining his decision and
the reasons for the action being taken; and (4) in some circumstances, the right to assistance in
preparing a defense. See Wolff v. McDonnell, 418 U.S. 539, 564–69 (1974); Sira v. Morton, 380
F.3d 57, 69 (2d Cir. 2004).
Plaintiff alleges that Semple placed him on high security status without a hearing and also
that Semple, together with Chapdelaine, implemented a policy that forced plaintiff to plead
guilty to a false disciplinary report (apparently without a hearing). Plaintiff alleges that Santiago
and Martin rejected his complaints that he was not receiving adequate notice of his disciplinary
charges. Finally, plaintiff alleges that Nemeth, Dousis, Richardson, Conger, Rule, Gonzalez, and
Congelos interfered with his ability to present a defense during his disciplinary hearing by
denying him the opportunity to call witnesses and present documentary evidence and by placing
him in restrictive confinement prior to the hearing. The Court will allow plaintiff’s procedural
due process claims to proceed against Semple, Santiago, Martin, Nemeth, Dousis, Richardson,
Conger, Chapdelaine, Rule, Gonzalez, and Congelos. All other procedural due process claims are
dismissed.2

2

Plaintiff alleges that several defendants issued false disciplinary reports against him. These allegations do
not amount a claim for a violation of due process. See, e.g. Stockwell v. Santiago, 2016 WL 7197362, at *4 (D.
Conn. 2016) (explaining that “inmates ‘have no constitutionally guaranteed immunity from being falsely or wrongly
accused of conduct which may result in the deprivation of a protected liberty interest.’ . . .[and] ‘[t]he filing of a
false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a
subsequent disciplinary hearing.’ . . . An inmate’s protection against false accusations lies in the procedural due
process requirements to be applied by prison officials who conduct the disciplinary hearing.”) (quoting Freeman v.

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In order to state a substantive due process claim, a plaintiff must allege that government
officials have deprived plaintiff of a fundamental constitutional right and that they have done so
under circumstances that are no less than “arbitrary” and “outrageous,” typically as demonstrated
by conduct that “shocks the conscience.” See, e.g., United States v. Medunjanin, 752 F.3d 576,
590 (2d Cir. 2014) (substantive due process has generally protected “matters relating to
marriage, family, procreation, and the right to bodily integrity”); Natale v. Town of Ridgefield,
170 F.3d 258, 262–63 (2d Cir. 1999) (substantive due process standards violated “only by
conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental
authority”); Velez v. Levy, 401 F.3d 75, 93–94 (2d Cir. 2005) (describing the “shocks the
conscience” standard).
“Where a particular Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior, ‘that Amendment, not the more
generalized notion of substantive due process, must be the guide for analyzing these
claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (quoting Graham v.
Connor, 490 U.S. 386, 395 (1989)). Here, the allegations of the complaint appear to be covered
by the First Amendment, Eighth Amendment, and procedural due process, for the reasons
explained above. I do not understand the complaint to additionally allege a violation of
substantive due process distinct from the foregoing claims. Plaintiff’s substantive due process
claims are therefore dismissed.

Rideout, 808 F.2d 949, 951 (2d Cir. 1986); Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986); Wolff v.
McDonnell, 418 U.S. 539, 564–66 (1974)).

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Equal Protection
Plaintiff brings a Fourteenth Amendment equal protection claim against numerous
defendants. Plaintiff contends that he personally was denied various privileges afforded to other
disabled inmates or to other inmates in his housing units.
The Supreme Court has recognized that “[t]he Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal
protection of the laws,’ which is essentially a direction that all persons similarly situated should
be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting
Plyler v. Doe, 457 U.S. 202, 216 (1982)). A plaintiff may state a violation of the Equal
Protection Clause under the “class of one” theory. To state a valid class-of-one claim, a plaintiff
must allege that he “has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000).
I conclude that plaintiff has alleged sufficient facts to support plausible class-of-one equal
protection claims against defendants Martucci, Maldonado, Wright, Colon, Santiago, Martin,
Zegarzewski, Gillette, and Chapdelaine. He alleges that these defendants denied him privileges
afforded to other hearing-impaired inmates, such as additional time to use the telephone and
medical call boxes provided to inmates with health issues. He also alleges that they improperly
placed him in a restrictive housing unit as opposed to a unit for disabled inmates. Plaintiff has
not alleged any facts that support a prima facie equal protection claim against the other
defendants, however. Thus, his equal protection claims are dismissed as to defendants Semple,
Gallagher, Maurer, Long, Conger, Santana, Griffen, and Lizon.

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Supervisory liability
The complaint also alleges that defendants “carelessly and recklessly failed to properly
train and supervise [their] employees . . . in that they failed to train [their] employees how to do
[their] job correctly, [and] failed to give them proper instruction as to [their] deportment,
behavior and conduct as representatives of their employer.” Doc. #1-1 at 29–30 (¶ 60). The Court
construes this allegation as a claim that those defendants who are supervisors violated plaintiff’s
constitutional rights by failing to properly train and supervise prison officials. A plaintiff can
succeed on such a claim if a supervisor is grossly negligent in supervising an officer who
commits a constitutional violation or permits a custom that sanctions unconstitutional conduct to
continue. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (listing five criteria
supporting a claim for supervisory liability). But “conclusory, unsupported allegations [of gross
negligence or the existence of a policy] are simply insufficient to establish liability of
supervisory prison officials under § 1983.” Parris v. New York State Dep't of Correctional
Servs., 947 F. Supp. 2d 354, 364 (S.D.N.Y. 2013). Because plaintiff’s supervisory liability claim
is not supported by specific facts, I will dismiss the claim.
CONCLUSION
In accordance with the foregoing analysis, the Court enters the following orders:
(1)

Plaintiff’s discrimination and retaliation claims under the ADA and § 504 of the

Rehabilitation Act will proceed against defendant Connecticut Department of Correction for
monetary damages.
(2)

Plaintiff’s First Amendment retaliation claim will proceed against defendants

Maldonado, Colon, Griffen, Richardson, Chapdelaine, Hall, and Leightner in their individual
capacities for monetary damages.

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(3)

Plaintiff’s Eighth Amendment deliberate indifference to medical needs claim will

proceed against defendants Semple, Gallagher, Maurer, Martucci, Maldonado, Wright, Long,
Colon, Santiago, Martin, Zegarzewski, Gillette, Conger, Chapdelaine, Roy, Rule, Gonzalez,
Leightner, Marga, Griffen, and Lizon in their individual capacities for monetary damages.
(4)

Plaintiff’s Fourteenth Amendment procedural due process claim will proceed

against defendants Semple, Santiago, Martin, Nemeth, Dousis, Richardson, Conger,
Chapdelaine, Rule, Gonzalez, and Congelos in their individual capacities for monetary damages.
(5)

Plaintiff’s Fourteenth Amendment equal protection claim will proceed against

defendants Martucci, Maldonado, Wright, Colon, Santiago, Martin, Zegarzewski, Gillette, and
Chapdelaine in their individual capacities for monetary damages.
(6)

All other claims not listed above are DISMISSED. The Clerk of Court shall

dismiss Quiros, Rinaldi, Long, Grimaldi, and Collins as defendants.
(7)

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 the DOC in its official capacity by
delivering the necessary documents in person to the Office of the Attorney General, 55 Elm
Street, Hartford, CT 06141.
(8)

The Clerk shall verify the current work addresses for defendants Semple,

Martucci, Maurer, Gallagher, Marga, Vazquez, Maldonado, Wright, Colon, Lizon, Santiago,
Martin, Zegarzewski, Gillette, Conger, Nemeth, Dousis, Richardson, Congelos, Griffen,
Chapdelaine, Hall, Roy, Santana, Rule, Gonzalez, and Leightner with the DOC Office of Legal
Affairs, mail a waiver of service of process request packet containing the complaint to each
defendant at the confirmed address within twenty-one (21) days of this Order, and report to the
court on the status of the waiver request on the thirty-fifth (35) day after mailing. If any

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defendant fails to return the waiver request, the Clerk shall make arrangements for in-person
service by the U.S. Marshals Service on him or her, and the defendant shall be required to pay
the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).
(9)

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 they 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.
(10)

Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be

completed within seven months (210 days) from the date of this order. Discovery requests
need not be filed with the court.
(11)

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

days) from the date of this order.
(12)

Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to dispositive

motion within twenty-one (21) days of the date the motion was filed. If no response is filed, or
the response is not timely, the dispositive motion can be granted absent objection.
(13)

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

Court Rule 83.1(c)2 provides that plaintiff MUST notify the court. Failure to do so can result in
the dismissal of the case. Plaintiff must give notice of a new address even if he is incarcerated.
Plaintiff should write “PLEASE NOTE MY NEW ADDRESS” on the notice. It is not enough to
just put the new address on a letter without indicating that it is a new address. If plaintiff has
more than one pending case, he should indicate all of the case numbers in the notification of

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change of address. Plaintiff should also notify defendants or counsel for defendants of his new
address.
It is so ordered.
Dated at New Haven this 8th day of August 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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