Green v. Maldonodo et al
INITIAL REVIEW ORDER (see attached). Signed by Judge Charles S. Haight, Jr. on August 17, 2017.(Kahl, A)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
EDWARD MALDONODO, GARY
WRIGHT, JOHNNY WRIGHT, RICHARD
FUREY, KOPACZ C/O ADMINISTRATIVE
AUGUST 17, 2017
INITIAL REVIEW ORDER
Haight, Senior District Judge:
Plaintiff Courtney Green, currently incarcerated at Osborn Correctional Institution
("Osborn") in Somers, Connecticut, filed this complaint pro se pursuant to 42 U.S.C. § 1983. He
has named as Defendants Warden Edward Maldonado, Deputy Warden Gary Wright, Dr. Johnny
Wright, Health Services Administrator Richard Furey, and Correctional Officer Kopacz. Each
Defendant is sued only in his or her individual capacity. Plaintiff contends that Defendants have
discriminated against him based on his disability and subjected him to unconstitutional conditions
STANDARD OF REVIEW
Under section 1915A of title 28 of the United States Code, the Court must review all prisoner
civil complaints against governmental actors, 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(b)(1),(2).
In reviewing a pro se complaint, the Court must assume the truth of the allegations, and interpret
them liberally to "raise the strongest arguments [they] suggest." Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007); see also 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)). Although detailed
allegations are not required, the complaint must include sufficient facts to afford the defendants fair
notice of the claims and the grounds upon which they are based. Bell Atlantic v. Twombly, 550 U.S.
544, 555-56 (2007). A plaintiff must plead "enough facts to state a claim to relief that is plausible
on its face." Id. at 570. "Even in a pro se case, however . . . threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice." Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court
"invent factual allegations" plaintiff has not pleaded. Id.
The factual allegations contained in Green's Complaint are recounted herein, recited in the
light most favorable to Green. On or about October 21, 2016, Green was transferred to Osborn.
Doc. 1 ¶ 1. He was housed in "E-Unit, 24 cell," which was in emergency lockdown. Id. After three
days, he was allowed to shower. Id. When he entered the shower, it was a small room with a grated
steel door and a window that allowed him to see into the corridor and those in the corridor to see
him. Id. The floor of the shower appears to be made of tile over a concrete floor that is always very
wet and slippery. Id. There is nothing to hold onto in the shower to keep ones balance and prevent
one from falling over. Id. There is also about a three foot wall that Green has to step over to enter
and exit the shower. Id.
In the middle of November 2016, Green wrote to "counselor supervisor Long," the American
Disabilities Act ("ADA") coordinator at Osborn through an inmate request regarding the shower
seeking an accommodation. Id. ¶ 2. Long did not respond to Green's request for a shower
accommodation. Id. On or about December 1, 2016, Green was sent to Dr. Wright regarding an
unrelated issue to the claim of ADA discrimination; however, during the meeting Green asked for
assistance in obtaining accommodations for a shower in the housing unit that would not require him
to step over the wall to get in and out of the shower. Id. ¶ 3. Dr. Wright explained that he was
unaware of the wall and inquired as to why Green needed the accommodations. Id. Green showed
Dr. Wright his surgically repaired leg and ankle, which are also arthritic. Id. Dr. Wright agreed that
Green's leg was impaired and issued him a bottom bunk pass. Id. Dr. Wright informed Green that
he did not meet the criteria or requirements for specialized housing where there are handicapaccessible showers despite admitting that Green had a physical impairment. Id. ¶ 4. Green asked
about the requirements and Dr. Wright expressed that an inmate must be wheelchair bound, missing
a limb, on crutches, or require the use of a cane to obtain the specialized housing. Id. Dr. Wright
informed Green that there were inmates in far worse shape than him. Id. Dr. Wright never
examined or treated Green's leg or ankle and did not log any complaint about Green's leg or ankle.
Id. ¶ 5.
On or about December 5, 2016, Green wrote to his unit counselor McMillian via an inmate
request, seeking a facility transfer to accommodate his needs for a shower due to his physical
impairment. Id. ¶ 6. McMillian responded that Green had been submitted for a facility transfer,
which was subsequently denied. Id. On or about December 6, 2016, Green filed an appeal based
on Long's failure to reply to his request in a timely manner, violating Administrative Directive
9.6(6)(C). Id. ¶ 7. Shortly thereafter, Green wrote to Deputy Warden Gary Wright via an inmate
request seeking a change in housing for a unit that had a shower without the three foot wall. Id. ¶ 8.
Deputy Warden Wright did not respond to Green's complaint, which is a common practice at
Osborn. Id. On December 15, 2016, Green requested reasonable accommodations by filing "CN
101902 form pursuant to CT Department of Corrections." Id. ¶ 9.
On or about January 10, 2017, Green's ADA appeal was returned by Correctional Officer
Administrative Remedies Coordinator Kopaz. Id. ¶ 10. The disposition reflects the wrong year in
its date by mistake. Id. ¶ 11. The reason for the rejection of the appeal was because an appeal can
be filed only when a decision by the ADA coordinator had been made. Id. Because no such
decision had been made at the time of the appeal, Green's appeal was rejected. Id. Kopaz signed
Green's ADA form explaining that he had exhausted his Administrative Remedies even though he
never received a formal decision. Id. Green believes this was done to "create impediments" in his
request to obtain remedies and accommodations. Id. Warden Maldonado also signed Green's ADA
Shortly thereafter Green saw Captain Manning, the first shift commander, during a tour of
B-Unit, Green's current housing unit. Doc. 1 ¶ 12. He asked Manning if Kopacz was trained or
certified in ADA compliance and Manning told him that Kopacz was not; only Captain Colon and
Long are trained and certified in ADA compliance. Id. On February 1, 2017, Green received his
"CN 101901 form" and it was denied because Green did not meet the requirements for specialized
housing based on Dr. Wright's review. Id. ¶ 13. Deputy Warden Wright and Richard Furey signed
this declination. Id. In the later part of February 2017, Green became aware of a December 30,
2016 email regarding his ADA accommodations. Id. ¶ 14. In the email, which was between Furey,
Elizabeth Mahar, and Dr. Wright, Furey emailed Mahar saying that Green should be seen by a
doctor to determine if he needs a handicapped shower. Id. Furey remarked that Green "[c]laims he
has a rod in his leg that does not allow him to step over the shower wall" and that "[t]his is an ADA
request so once seen, contact Devonia Long, as she has to close out the ADA accommodation form."
Id. Dr. Wright later responded saying "I have already seen this inmate and he questioned me in
regards to ADA accommodation. I informed him that he did not meet the criteria for ADA
accommodations. This was noted in his chart because it was informal, oh by the way inquiry. If
necessary, I can make a formal documentation in his chart." Id. Green is currently still subjected
to these "dangerous shower conditions," which have forced "him to walk on very slippery surfaces
and step over a 3ft wall to participate in the benefits of the services, programs or activities of a
public entity (shower)." Id. ¶ 15.
Green's Complaint contains three specific causes of action. Doc. 1 at 5-6. However, the
Court will construe his causes of action liberally to raise the strongest claim suggested. Green
asserts a § 1983 claim based on the negligence and actions of each of the Defendants in failing to
accommodate his serious needs in violation of the Eighth Amendment. Id. at 6. According to
Green, he was deprived of the "minimal civilized measure of life's necessities (shower
accommodations)" by Defendants and this violated his right to be free from cruel and unusual
punishment. Id. at 5. Green also asserts that he been discriminated against based on his
disability/impairment and has not been provided a reasonable accommodation for his medical needs.
Id. at 5. He asserts this claim against each of the Defendants. Id. Although he labels it a § 1983
claim based on a violation of his Eighth Amendment rights, his allegations are more properly
construed as an ADA violation claim, 42 U.S.C. § 12101, et seq. Finally, he asserts a § 1983 claim
based on the denial of his rights under the Fourteenth Amendment because he was denied equal
treatment and discriminated against because of his disability/impairment. Id. at 6. He also asserts
this claim against each of the Defendants. Id. Green seeks declaratory relief, compensatory and
punitive damages as well as reasonable attorneys's fees and costs. Id. at 7.
The Court will assess each of Green's three claims to determine whether any claim “is
frivolous, malicious, or fails to state a claim upon which relief may be granted,” or a claim that
“seeks monetary relief from a defendant who is immune from such relief.”
28 U.S.C. §
1915A(b)(1),(2). The Court will address each claim.
Eighth Amendment Claim
The Eighth Amendment's prohibition on cruel and unusual punishment includes a prohibition
on inhumane conditions of confinement. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002)
(citing Farmer v. Brennan, 511 U.S. 825, 828 (1994)). The standard for an inhuman conditions
claim contains both an objective and a subjective component: objectively, "the prison officials'
transgression" must be "'sufficiently serious'"' and subjectively, "the officials [must have] acted, or
omitted to act, with a 'sufficiently culpable state of mind,' i.e. with 'deliberate indifference to inmate
health or safety.'" Id. at 185 (quoting Farmer, 511 U.S. at 834 ). "Under the objective element,
while the Constitution 'does not mandate comfortable prisons,' inmates may not be denied 'the
minimal civilized measure of life's necessities.'" Alster v. Goord, 745 F. Supp. 2d 317, 335
(S.D.N.Y. 2010) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Thus, prison officials
cannot "deprive inmates of their 'basic human needs—e.g., food, clothing, shelter, medical care, and
reasonable safety.'" Id. (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)). Such needs include
the "essential bodily functions of toileting and showering." Id. at 336 (quoting Hudson v.
McMillian, 503 U.S. 1, 9 (1992)) (internal quotation marks omitted). "Claims of such deprivations
are generally found to be sufficiently grave when they involve the possibility of serious pain or
injury." Montalvo v. Koehler, No. 90 Civ. 5218 , 1992 WL 396220, at *4 (S.D.N.Y. Dec. 21, 1992)
(collecting cases). Prison officials also cannot expose prisoners to conditions that may pose an
unreasonable risk of serious damage to the prisoners' future health. Alster, 745 F. Supp. 2d at 335
(citing Phelps, 308 F.3d at 185).
Here, construing Green's allegations liberally, he alleges that he has been forced to shower
in unsafe conditions given his current health and surgically repaired leg.1 The manner in which he
has been forced to shower has repeatedly subjected him to the possibility of serious injury. He is
essentially alleging that he is being exposed to conditions that "'pose an unreasonable risk'" of
serious injury to him given his current injuries and disability. See Alster, 745 F. Supp. 3d at 335
(quoting Phelps, 308 F.3d at 185). These are sufficient allegations to establish the objective element
of an Eighth Amendment claim at this stage. See Montalvo, 1992 WL 396220, at *4.2
The Court recognizes that the conditions of the shower, i.e. the standing water or slippery
surface, alone would not give rise to an Eighth Amendment claim. See Hawkins v. Nassau Cnty.
Corr. Facility, 781 F. Supp. 2d 107, 113 (E.D.N.Y. 2011) (collecting cases) (holding that alleged
standing water in a shower area does not deprive an inmate of a basic human need and, thus, cannot
give rise to a constitutional violation). Here, however, Green has claimed that he has a disability
which is exacerbated by the set up and conditions of the shower, placing him repeatedly at risk of
Absent from Greene's allegations are any details on whether he has in fact been injured
because of how he has been forced to use the shower or whether he has been deprived of the ability
to shower altogether. Such allegations, however, are not necessarily required to state an Eighth
Amendment claim. See Montalvo, 1992 WL 396220, at *4 n.6 ("However, actual injury is not
necessary to show that a policy exhibits reckless indifference to [plaintiff's] safety." (citing Rivera
v. Dyett, No. 88 Civ. 4707, 1992 WL 233882, at *7 (S.D.N.Y. Sept. 10, 1992)). Related to other
claims, Green will have the opportunity to amend his Complaint. To the extent he has in fact been
To establish the subjective element of an Eighth Amendment claim, a plaintiff must
demonstrate each of the individual defendants "act[ed] with a sufficiently culpable state of mind."
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation and internal quotation marks
omitted). Although Green's allegations are limited, construing them liberally, he does allege that,
at different points and through different means, he made each of the Defendants aware of his
disability and the conditions as well as the specific problem presented by the shower. He sought an
ADA accommodation and was denied. He appealed that decision. According to the allegations,
each of the Defendants had some role in keeping Green from accessing a handicap shower or other
accommodation for his disability. Although at one point he phrases the claim as "negligence" on
part of the Defendants, he also alleges that they took these actions deliberately and in the face of
evidence of his disability and/or in wilful ignorance. These allegations are sufficient at this stage.
See, e.g., Grullon v. City of New Haven, 720 F.3d 133, 140-41 (2d Cir. 2013) (holding that where
a pro se prisoner plaintiff alleges that he informed a supervisor about an ongoing and continuing
unconstitutional prison condition that the supervisor personally allowed to continue, a claim for
supervisory liability may survive dismissal at the Rule 12(b)(6) stage and be subject to discovery).
In summary, Green has stated an Eighth Amendment claim against each of the Defendants
for exposing him to conditions that posed, and continue to pose, and unreasonable serious risk of
harm to him given his disability.
The purpose of the ADA is "to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Title
injured or deprived of the use of the shower, he should explain such instances in detail.
II of the ADA provides that "no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. §
12132. The statute is intended "to ensure evenhanded treatment between the disabled and the
able-bodied." Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998). However, "[t]he ADA does not
provide for individual capacity suits against state or city officials." Alster, 745 F. Supp. 2d at 337
(citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)). Here,
Green has chosen only to sue each Defendant in his or her individual capacity. Accordingly, to the
extent Green has attempted to plead any ADA individual capacity claims, such claims must be
Green could possibly assert a valid ADA claim against the appropriate state entity, the
Connecticut Department of Correction, which is not currently a defendant in this action.3 However,
"to establish a violation under the ADA, the plaintiff must demonstrate that (1) [he] is [a] qualified
individual' with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiff
[ ] w[as] denied the opportunity to participate in or benefit from defendants' services, programs, or
activities, or w[as] otherwise discriminated against by defendants, by reason of plaintiff['s]
disabilities." Id. (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). The Court
will allow Plaintiff the opportunity to amend his Complaint to add the state entity defendant and
The Court notes that where, as would likely be the case here, when "a plaintiff may proceed
on his ADA claims against the State entity directly, courts in this Circuit 'dismiss [ ] the official
capacity claims because they [are] redundant of the claims against the government entity." Alster,
745 F. Supp. 2d at 339 (quoting Fox v. State Univ. of N.Y., 497 F. Supp. 2d 446, 451 (E.D.N.Y.
2007)). Moreover, other courts in this Circuit have held that official capacity claims are not viable
under the ADA. Fox, 497 F. Supp. 2d at 451 (collecting cases).
properly assert an ADA claim against it. The plaintiff must do so by September 15, 2017. The
Court notes, however, that in order to show that a plaintiff is a "'qualified individual with a
disability,' the plaintiff must establish that he has a physical or mental impairment and provide
evidence that such impairment 'substantially limits one or more of that person's major life
activities.'" Andino v. Fischer, 698 F. Supp. 2d 362, 378 (S.D.N.Y. 2010) (quoting Heilweil v. Mount
Sinai Hospital, 32 F.3d 718, 722 (2d Cir. 1994)). Plaintiff, at present, has not described his
impairment to the extent that this Court could conclude he has adequately pled that he is a qualified
individual under the ADA. If Plaintiff amends his Complaint, he must add allegations supporting
this element, and the other two elements as well, of his ADA claim.4
C. Equal Protection Claim5
The Equal Protection Clause requires that the government treat similarly situated people in
a similar manner. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "To prove
a violation of the Equal Protection Clause . . . a plaintiff must demonstrate that he was treated
differently than others similarly situated as a result of intentional or purposeful discrimination."
Shariff v. Coombe, 655 F. Supp. 2d 274, 302 (S.D.N.Y. 2009) (quoting Phillips v. Girdich, 408 F.
In addition, Plaintiff can only make an ADA claim if the conduct he complains of also
violates the Eighth Amendment. See Darvie v. Countryman, No. 9:08-cv-0715, 2010 WL 3724122,
at *4-5 (N.D.N.Y. April 26, 2010) (citing Degrafinreid v. Ricks, 417 F. Supp. 2d 403, 411-13
(S.D.N.Y. 2006)), adopted by 2010 WL 3724020 (N.D.N.Y. Sept. 15, 2010). Because the Court has
found that Plaintiff's Eighth Amendment claim should be allowed to proceed, this would not pose
an issue currently to Plaintiff. However, if this claim is unfounded, any ADA claim will fail as well.
In his Complaint Green phrases this claim as a "denial of due process" but goes on to allege
that he was not treated in an "equal" manner and discriminated based on his disability. The facts,
as currently plead in his Complaint, even when liberally construed, do not appear to support a
cognizable due process claim. Thus, the Court analyzes this claim as an equal protection claim and
not a due process claim.
3d 124, 219 (2d Cir. 2005)) (internal quotation marks omitted). "A plaintiff also must demonstrate
that any disparity in treatment cannot withstand the appropriate level of scrutiny." Id. The disabled,
however, are not a suspect or quasi-suspect class, and therefore, rational basis scrutiny—that the
disparity be rationally related to a legitimate governmental purpose—applies. Id. Additionally, a
plaintiff may bring a "class of one" equal protection claim "where the plaintiff alleges 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). "The
standard for determining whether another person's circumstances are similar to the plaintiff's must
be . . . whether they are 'prima facie' identical." Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir.
2005) (quoting Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)), overruled
on other grounds by Appel v. Spiridan, 531 F.2d 138, 139-40 (2d Cir. 2008).
Here, Green does not appear to allege that differential treatment has been imposed upon him;
instead, he is alleging that he was denied a reasonable accommodation for his disability.6 He fails
to point to anyone similarly situated who received different treatment, and does not allege that others
suffering from his condition were granted the accommodation. See Medina v. Skowron, 806 F.
Supp. 2d 647, 652-53 (W.D.N.Y. 2011) (dismissing an equal protection claim where a plaintiff had
not identified any similarly situated inmates treated differently from him). Rather, his allegations
reveal that Dr. Wright did not believe he qualified for the accommodation even though Dr. Wright
granted that his condition would require being situated on a lower bunk. Green does not allege any
facts from which the Court could conclude that Dr. Wright, or the other individual defendants,
Moreover, the Supreme Court has made clear that the denial of a reasonable
accommodation cannot form the basis of an Equal Protection claim so long as the actions toward
the inmate were rational. See Coombe, 655 F. Supp. 2d at 302.
sought to treat him differently on account of his disability or without any rational basis for doing so.
See Darvie, 2010 WL 3724122, at *4 (dismissing an equal protection claim where a plaintiff had
not "alleged facts plausibly suggesting or produced evidence raising a triable issue of fact that
Defendants' decision to transfer him was arbitrary, motivated by animus, or motivated by
impermissible considerations."). Because Green has failed to identify any similarly situated
individuals who were treated differently from him, let alone any with an "extremely high" level of
similarity between them, Green's equal protection claim must be dismissed. See Medina, 806 F.
Supp. 2d at 652-53.
Following this Court's review of Plaintiff's Complaint, and for the reasons stated, the
Court makes this Order:
Plaintiff's Complaint is DISMISSED to the extent it seeks to plead (a) any claim
pursuant to the ADA against the Defendants in their individual capacities; and (b) any § 1983 claims
based on the Equal Protection Clause. Those dismissals are made pursuant to 28 U.S.C. § 1915A(b).
Plaintiff's Complaint § 1983 claims based on a violation of the Eighth Amendment
WILL PROCEED against each named Defendant in their individual capacities.
To the extent that Green can remedy the failures in his Complaint noted by the Court
in this Ruling and assert an ADA claim against the appropriate state entity, the Connecticut
Department of Correction, Green may file an Amended Complaint seeking to add that specific claim
and the appropriate defendant. Green must do so by September 15, 2017. If Green does not, the
case will proceed on Green's § 1983 claims based on a violation of the Eighth Amendment.
For the proper governance of the case, the Court also makes these additional Orders:
The Clerk shall verify the current work address of Defendants Warden Edward
Maldonado, Deputy Warden Gary Wright, Dr. Johnny Wright, Health Services Administrator
Richard Furey, and Correctional Officer Kopacz with the Department of Correction Office of Legal
Affairs and mail a waiver of service of process request packet to each defendant at the confirmed
address within twenty-one (21) days from the date of this Order. The Clerk shall report to the Court
the status of that waiver request on the thirty-fifth (35th) day after mailing. If any Defendant fails
to return the waiver request, then the Clerk shall make arrangements for in-person service by the
U.S. Marshals Service on the Defendant in his or her individual capacity and Defendant shall be
required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).
The Clerk shall send a copy of this Order to Plaintiff. The Clerk shall also send a
courtesy copy of the Complaint and this Order to the Connecticut Attorney General and the
Department of Correction Office of Legal Affairs.
Defendants shall file their response to the Complaint, either an answer or a
motion to dismiss, within sixty (60) days from the date the waiver form is sent. If they choose to
file an answer, then 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 of Civil Procedure.
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.
All motions for summary judgment shall be filed within eight months (240 days)
from the date of this Order.
Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to a 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.
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 change of address.
Plaintiff should also notify the defendant or the attorney for the defendant of his new address.
Plaintiff shall utilize the Prisoner Efiling Program when filing documents with
It is SO ORDERED.
Dated: New Haven, Connecticut
August 17, 2017
/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
SENIOR UNITED STATES DISTRICT JUDGE
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