Ramirez v. Allen et al

Filing 7

ORDER. The Court has reviewed the complaint in this case, according to 28 U.S.C. Section 1915A. As stated in the attached order, the complaint will proceed only as to certain of the plaintiff's claims. Before the Court orders service on the remaining defendants, the plaintiff must submit a notice stating whether he waives for all time all claims in this action relating to disciplinary sanctions affecting the duration of confinement (i.e., the forfeiture of RREC) in order to proceed with his claims challenging the sanctions affecting the conditions of his confinement. The plaintiff shall file this notice, in writing using the Prisoner Efiling Program, within 20 days of the filing date of this Ruling. The Court spe cifically advises the plaintiff that the Court will deem his failure to file this statement within the required time to constitute his refusal to waive these claims, and such failure will thus result in the dismissal of this due process claims. In ad dition, should the plaintiff elect to proceed on his due process claims, he shall provide information regarding the sanctions imposed at the disciplinary hearing for fighting or explain what conditions of confinement he suffered as a result of that guilty finding. Signed by Judge Michael P. Shea on 10/20/2017. (Mac Dougall, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

FELIX RAMIREZ,
Plaintiff,
v.
ALLEN, et al.,
Defendants.

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CASE NO. 3:17-cv-1335 (MPS)

OCTOBER 20, 2017

_____________________________________________________________________________
INITIAL REVIEW ORDER
Plaintiff Felix Ramirez, currently incarcerated at the MacDougall-Walker Correctional
Institution in Suffield, Connecticut, filed this case pro se under 42 U.S.C. § 1983 asserting
claims for various federal and state constitutional rights and state tort law. The plaintiff names
twenty-seven defendants: Deputy Warden Guadarrama, Lieutenants Williams and Richardson,
Captains Claudio and Hall, Correctional Officers Allen, Nordby, and Dubuque, Nurses Dionne
Botas and Tawanna Furtick, Nursing Supervisor Heidi Greene, Blatchelly, and fifteen John Doe
defendants. All defendants are named in individual and official capacities. The complaint was
received by the Court on August 7, 2017. The plaintiff’s motion to proceed in forma pauperis
was granted on August 10, 2017. (ECF No. 6.)
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. 28
U.S.C. § 1915A. In reviewing a pro se complaint, the Court must assume the truth of the factual

allegations, and interpret them liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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 and to demonstrate a plausible right to relief.
Bell Atlantic v. Twombly, 550 U.S. 544, 555–56 (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
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, 101–2 (2d Cir. 2010) (discussing special rules of solicitude for
pro se litigants).
I.

Allegations
During the last week of October 2015, while the plaintiff was returning from vocational

education, defendant Allen performed a pat-down search on the plaintiff. During the search, she
inappropriately touched his buttocks and genitals. Following this search, the plaintiff learned
that defendant Allen had done this before and that some instances had been reported. Although
informed of this conduct, defendant Guadarrama did not discipline defendant Allen or otherwise
control her behavior.
On October 30, 2015, defendants Allen and Nordby were conducting the pat-down
searches of inmates returning from vocational education. The plaintiff waited to have defendant
Nordby conduct his search. Defendant Allen motioned for the plaintiff to come to her to be
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searched. The plaintiff explained to defendant Nordby that he did not want defendant Allen to
search him because she had previously groped his genitals and buttocks. Although she heard the
plaintiff’s objection, defendant Allen ordered the plaintiff to go to her to be searched, and
defendant Nordby did not intervene. Defendant

Allen

again

touched

the

plaintiff

inappropriately. The plaintiff told defendant Allen that he was going to report the misconduct.
Shortly thereafter, defendant Allen prepared a disciplinary report for the plaintiff’s failure to
obey direct orders.
Upon returning to his housing unit, the plaintiff asked a correctional officer to contact the
lieutenant so he could make a PREA (Prison Rape Elimination Act) report against defendant
Allen. The plaintiff went to the lieutenant’s office where he was surrounded by 10–12 highranking correctional officers. The plaintiff described the incidents and asked for a state police
investigation. Defendant Williams asked why the plaintiff had not reported the first incident.
The plaintiff stated that he thought it might have been unintentional and feared retaliation.
Defendant John Doe 1 told the plaintiff that defendant Allen was doing her job, and the plaintiff
had to permit it. The plaintiff does not believe that the state police were contacted. He does not
allege that he made any attempt to contact the state police himself.
That afternoon, defendant Botas interviewed the plaintiff in the medical unit. The
plaintiff stated that he felt upset and violated and requested mental health assistance. Defendant
Botas contacted the on-call doctor, Dr. John Doe 2, and her supervisor, defendant Greene, but
did not return and did not follow-up with mental health assistance.
Defendant Williams and defendant officers Does 3, 4, 5, and 6 placed handcuffs on the
plaintiff “extra tight from behind.” ECF No. 1 at 3, ¶ 32. When the plaintiff complained of pain,
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the officers lifted his arms causing more pain. The plaintiff was escorted to the restrictive
housing unit on administrative detention status. When the plaintiff fell to the floor, defendant
Williams ordered the cuffs loosened, but they remained tight and painful.
Defendant Furtick responded to the plaintiff’s request for medical attention in the
restrictive housing unit. The plaintiff complained of bruising and abrasions on his wrists. After
examining the plaintiff’s wrists, defendant Furtick refused to photograph the injuries or provide
any treatment. The plaintiff refused to sign the medical incident report because defendant
Furtick had written that no injuries were reported or noted as a result of the handcuff placement.
Defendant Williams was present but did not correct this misstatement.
The plaintiff remained on administrative detention status in restrictive housing for
nineteen days. On November 24, 2015, the plaintiff submitted a request for health services
review. Defendant Greene never responded to the request.
On October 31, 2015, the plaintiff’s second day in restrictive housing, he received a
disciplinary report for disobeying a direct order. The plaintiff pleaded not guilty and requested
defendants Allen and Nordby as witnesses. Defendant Richardson was the disciplinary hearing
officer. At the disciplinary hearing, the plaintiff again requested his witnesses, but defendant
Richardson denied the request. The plaintiff was found guilty of the charge. In the decision,
defendant Richardson stated that the plaintiff had admitted that he refused to allow defendant
Allen to search him. The plaintiff alleges this was a mischaracterization of his statement at the
hearing. His sanctions included forfeiture of five days of Risk Reduction Earned Credit. The
disciplinary finding was upheld on appeal.
In late April 2016, the plaintiff was assigned a new cellmate, inmate Dobson. When the
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plaintiff questioned the change, defendants Does 7 and 8 told him that they were following
orders and suggested that he speak to the captains and deputy warden. Inmate Dobson appeared
paranoid and irritable. He randomly shouted at the plaintiff in a threatening and intimidating
manner and was unclean and messy. The plaintiff heard Correctional Officer Thompson refer to
inmate Dobson by the nickname “psycho.” The plaintiff believed that inmate Dobson was
mentally ill and had been placed in the plaintiff’s cell in retaliation for his PREA complaints.
On April 30, 2016, the plaintiff wrote to defendant Blatchelly expressing fears for his
safety because inmate Dobson was mentally ill. Defendant Blatchelly denied the plaintiff’s
request for cell transfer, stating that the facility did not accommodate request for convenience
transfers. On May 7, 2016, when the cell door opened for breakfast, inmate Dobson was startled
and threatened to kill the plaintiff. The plaintiff went to the control area and asked to be taken to
restrictive housing for his protection. Defendant Doe 9 contacted the lieutenant, then told the
plaintiff to return to his cell to wait for the lieutenant. The plaintiff begged to be placed in
restrictive housing, but defendant Doe 9 ordered him to return to his cell.
The plaintiff returned to his cell. However, it was nearly time for the shift change, and no
supervisor came to his cell. Later that morning, inmate Dobson struck the plaintiff in the face
and head with a hard plastic coffee mug. The plaintiff got inmate Dobson in a bear hug, brought
him face down to the floor, and held him to stop the attack. The plaintiff suffered a 2” laceration
from his eyebrow to his nose and a lump on his head.
Defendant Dubuque ordered the plaintiff to release inmate Dobson. The plaintiff asked
defendant Dubuque to open the door, stating that he was holding inmate Dobson to prevent
inmate Dobson from attacking him. Lieutenant Doe 10 ordered the door opened. The plaintiff
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released inmate Dobson. Without warning, Lieutenant Doe 10 sprayed the plaintiff in the face
with a chemical agent. The plaintiff immediately lay on the floor, face down, with arms spread
out and palms open. Three John Doe officers, Does 11, 12, and 13, entered the cell and jumped
on the plaintiff’s back and kicked him in the ribs. The plaintiff offered no resistance. One
officer twisted the plaintiff’s arm, hand and thumb behind his back.

Lieutenant Doe 10

supervised the incident and did not intervene. Defendant Doe 14 filmed the incident and did not
intervene. The plaintiff was decontaminated and his laceration treated in the medical unit. He
then was transported to the University of Connecticut Health Center and treated for fractures to
his left ribs and right thumb. The plaintiff requested, but was not provided, mental health
treatment.
Defendant Dubuque issued the plaintiff a disciplinary report for fighting. The plaintiff
was found guilty. He does not know what sanctions were imposed. The plaintiff believes that
the finding was upheld on appeal. Defendant Claudio did not respond to the plaintiff’s request
for a copy of the appeal decision or his complaints regarding the placement of inmate Dobson in
his cell and defendant Blatchelly’s actions. After being transferred to a different housing unit,
the plaintiff resubmitted his requests. Defendant Hall refused to investigate and ripped up the
requests.
II.

Analysis
The plaintiff identifies the following claims: (1) Fourth and Eighth Amendment claims

against defendants Allen and Guadarrama for the PREA violation and the failure to take action
despite similar reports against defendant Allen; (2) failure to protect against defendant Nordby;
(3) retaliation and defamation claims against defendant Allen for issuance of the disciplinary
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report; (4) denial of due process, denial of equal protection, and racial discrimination for the
actions of defendants Williams and Doe 1 regarding his reporting of the PREA violation; (5)
deliberate indifference to serious mental health needs against defendants Botas, Greene and
Doctor Doe 2 for failing to provide mental health treatment upon request; (6) retaliation,
excessive force, assault, battery, and intentional infliction of emotional distress against
defendants Williams and Does 3, 4, 5, and 6 relating to handcuffing during the plaintiff’s escort
to restrictive housing; (7) deliberate indifference to medical needs and intentional infliction of
emotional distress against defendants Furtick and Williams for refusal to acknowledge injury
from the handcuffs; (8) retaliation, denial of due process, defamation, and intentional infliction
of emotional distress against defendants Richardson and Claudio based on the disciplinary report
for failing to obey a direct order; (9) retaliation and deliberate indifference against defendants
Does 7 and 8 for placing inmate Dobson in plaintiff’s cell; (10) intentional infliction of
emotional distress against “the higher ranking aforementioned defendants” for placing inmate
Dobson in plaintiff’s cell; (11) failure to protect against defendant Blatchelly; (12) failure to
protect and intentional infliction of emotional distress against defendant Doe 9 for ordering the
plaintiff back to his cell; (13) excessive force, assault, battery, and intentional infliction of
emotional distress against defendants Gradarrama and Does 10, 11, 12, and 13 for the alleged
assault and use of chemical agent; and (14) denial of due process and defamation against
defendants Dubuque, Doe 14, Claudio, and Hall regarding to the disciplinary charge for fighting.
A.

Sections 1985(3) and 1986

Throughout the complaint, the plaintiff refers to 42 U.S.C. §§ 1985(3) and 1986). The
complaint fails to allege facts to support a cognizable claim under either statute. Section 1985(3)
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prohibits conspiracies motivated by racial or otherwise class-based invidious discriminatory
animus. Iqbal v. Hasty, 490 F.3d 143, 176 (2d Cir. 2007), rev’d on other grounds sub nom.
Ashcroft v. Iqbal, 556 U.S. 62 (2009). Section 1985(3) may not be construed as a “general
federal tort law.” Griffin v. Breckenridge, 403 U.S. 88, 101–2 (1971). The plaintiff repeatedly
states he is a light-skinned Latino or Hispanic male while the defendants are Caucasian. He
attributes the actions of the defendants, however, to the fact that he complained about defendant
Allen’s actions, not his race or class. The mere fact that the plaintiff and defendants are of
different races is insufficient to demonstrate the required racial or class-based discrimination.
Thus, the plaintiff fails to state a plausible Section 1985 claim. See, e.g., Swanson v. City of New
York, No. 16-CV-3231(MKB), 2017 WL 3130322, at *8 (E.D.N.Y. July 21, 2017)
(unsubstantiated allegations of collaboration or understanding insufficient to demonstrate
meeting of the minds required for conspiracy claim (citing cases)). The section 1985(3) claim is
dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Section 1986 provides no substantive rights; it merely provides a remedy for the violation
of section 1985. Adickes v. S.H. Kress & Co., 398 U.S. 144, 222 n.28 (1970) (Brennan, J.,
concurring in part and dissenting in part). Thus, a prerequisite for an actionable section 1986
claim is a cognizable section 1985 claim. Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.
2000), overruled in part on other grounds by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). As
the plaintiff has not asserted a cognizable Section 1985 claim, his Section 1986 claim fails and is
dismissed pursuant to 28 U.S.C. Section 1915A(b)(1).
B.

Due Process

The plaintiff asserts due process claims relating to two disciplinary proceedings. He
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alleges that, in each case, his sanctions included forfeiture of Risk Reduction Earned Credit.
Because the plaintiff was subjected to “mixed sanctions, ” i.e., sanctions affecting both the
duration and the conditions of his confinement, his due process claims are barred by the
favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that a claim for money damages is not cognizable under
42 U.S.C. Section 1983 if a decision in favor of the plaintiff would necessarily invalidate a
criminal conviction unless that “conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal ..., or called into question by a
federal court's issuance of a writ of habeas corpus.” 512 U.S. at 486–87 (citation omitted). The
Supreme Court later extended the favorable termination rule to Section 1983 challenges to
procedures used in disciplinary proceedings that deprived a prisoner of good-time credits.
Edwards v. Balisok, 520 U.S. 641, 646–48 (1997).
The Second Circuit has held that Heck’s “favorable termination” rule was not an absolute
bar to consideration of due process claims arising from a disciplinary proceeding at which the
plaintiff was subject to “mixed sanctions.” Peralta v. Vasquez, 467 F.3d 98, 104 (2d Cir. 2006).
In that case, the Second Circuit held that “a prisoner subject to such mixed sanctions can proceed
separately, under Section 1983, with a challenge to the sanctions affecting his conditions of
confinement without satisfying the favorable termination rule, but . . . can only do so if he is
willing to forgo once and for all any challenge to any sanctions that affect the duration of his
confinement.” Id. (emphasis in original).
The plaintiff has not shown that the disciplinary findings he challenges have been
invalidated. Thus, his due process claims are barred by Heck unless the plaintiff “abandon[s],
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not just now, but also in any future proceeding, any claims he may have with respect to the
duration of his confinement that arise out of the proceeding he is attacking in [this] § 1983 suit.”
Id. Accordingly, the Court directs the plaintiff to advise the Court in writing, within twenty days
of the filing date of this Ruling, whether he waives for all time all claims in this action relating to
disciplinary sanctions affecting the duration of his confinement (i.e., the forfeiture of RREC) in
order to proceed with his claims challenging the sanctions affecting the conditions of his
confinement. The Court specifically advises the plaintiff that the Court will deem his failure to
file this statement within the required time to constitute his refusal to waive these claims, and
such failure will thus result in the dismissal of his due process claims. This direction applies to
the due process claims against defendants Richardson and Claudio in claim 8, and the due
process claims against defendants Dubuque, Doe 14, Claudio, and Hall in claim 14.
C.

Improper Touching

In his first claim, the plaintiff alleges that the defendant Allen violated his Fourth and
Eighth Amendment rights by touching him improperly in violation of the PREA.
“While acknowledging that the Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison cell, we held more than twenty years
ago that maintenance of prison security is not burdened unduly by the recognition that inmates
do retain a limited right to bodily privacy [under the Fourth Amendment.]” Harris v. Miller, 818
F.3d 49, 57 (2d Cir. 2016). “Courts assessing an inmate’s claim that officers infringed his or her
right to bodily privacy must undertake a two-part inquiry: (1) First, the court must determine
whether the inmate has exhibited an actual, subjective expectation of bodily privacy; and (2)
second, the court must determine whether the prison officials had sufficient justification to
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intrude on the inmate’s Fourth Amendment rights.” Id. (internal quotation marks omitted). The
plaintiff alleges that the pat search in this case exceeded legitimate needs and constituted
improper sexual touching. This allegation is sufficient to state a plausible Fourth Amendment
claim.
In addition, although the plaintiff cannot state a cognizable claim for violation of the
PREA, White v. Doe, 2017 WL 2562845, at *5 (D. Conn. June 13, 2017), his allegations of
sexual abuse are cognizable under the Eighth Amendment. See Boddie v. Schneider, 105 F.3d
857, 861 (2d Cir. 1997) (allegations of sexual abuse by correctional staff cognizable under
Eighth Amendment). To determine whether sexual contact by a correctional officer violates
contemporary standards of decency so as to be cognizable under the Eighth Amendment, I must
determine “whether the contact is incidental to legitimate official duties, such as a justifiable pat
frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or
humiliate the inmate.” Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015). Here, the
plaintiff alleges that the contact occurred during a pat frisk. However, he stated that the action
was deliberate and exceeded justifiable conduct. I consider this allegation sufficient, at this stage
of litigation, to state a plausible Eighth Amendment claim against defendant Allen.
D.

Failure to Discipline/Supervisory Violations

Also in his first claim, the plaintiff argues that defendant Guadarrama, the deputy warden,
failed to take action against defendant Allen for her improper actions toward him, even though
other inmates had reported similar misconduct. The victim of a crime has no constitutional right
to have the perpetrator investigated or prosecuted. See S. v. D., 410 U.S. 614, 619 (1973) (“A
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
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another.”); Joyce v. Hanney, 2009 WL 563633, at *9 (D. Conn. Mar. 4, 2009) (prisoner has no
constitutional right to have defendants disciplined or prosecuted). As the plaintiff has no right to
have defendant Allen disciplined for her actions, any claim for failure to impose discipline is
dismissed. Nonetheless, construing the plaintiff’s claim liberally and drawing all inferences in
his favor, the allegations against Guadarrama suggest that he knew that Allen was engaging in
unconstitutional conduct during inmate searches and did nothing to “control her behavior,” (ECF
No. 1-1 at 1) thereby allowing her to grope the plaintiffs. This is enough to state a supervisory
violation of Section 1983 under Colon. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(personal involvement by supervisor necessary to establish liability under Section 1983 may be
shown by, among others, proof that “the defendant exhibited deliberate indifference to the rights
of inmates by failing to act on information indicating that unconstitutional acts were
occurring.”).
E.

Failure to Protect / Deliberate Indifference to Safety

The plaintiff includes three claims for failure to protect him from harm or deliberate
indifference to his safety. In claim 2, he contends that defendant Nordby failed to protect him
from defendant Allen, and, in claims 11 and 12, he alleges that defendants Blatchelly and Doe 9
failed to protect him from inmate Dobson.

He also includes in claim 9, allegations that

defendants Does 7 and 8 were deliberately indifferent to his safety when they put inmate Dobson
in his cell.
Prison officials have a duty to make reasonable efforts to ensure inmate safety. To
establish a constitutional violation, an inmate must show that the conditions of his incarceration
posed a substantial risk of serious harm and that prison officials were deliberately indifferent to
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his safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference exists
where prison officials know of and disregard an excessive risk to inmate safety. See id. at 837;
Bridgewater v. Taylor, 698 F. Supp. 2d 351, 357 (S.D.N.Y. 2010) (explaining that defendants
must be aware of facts supporting an inference that harm would occur and must actually draw
that inference).
The plaintiff alleges that, on October 30, 2015, when defendant Allen motioned the
plaintiff to go to her to be searched, he told defendant Nordby that he did not want defendant
Allen to search him because she had previously groped his genitals and buttocks but defendant
Nordby did not prevent defendant Allen from searching him. The plaintiff claims that Norby
“raised his . . . palms up to signify . . . ‘I don’t care’ . . . and did not intervene” when Allen
improperly groped him again. Construing this allegation liberally and drawing all inferences in
the plaintiff’s favor, the Court concludes that the allegations are sufficient to state a plausible
claim against defendant Nordby for failure to intervene.
The plaintiff alleges that he wrote to defendant Blatchelly on April 30, 2016, stating that
he feared for his safety because inmate Dobson was mentally ill and asked for a cell transfer.
Defendant Blatchelly denied the request, considering it a request for a convenience transfer. The
plaintiff alleges that he renewed his request to defendant Blatchelly twice more seeking relief
before the assault by Dobson but was denied. The last request was two days before inmate
Dobson assaulted the plaintiff. The Court considers the allegations against defendant Blatchelly
of repeated request for assistance sufficient at this stage of litigation to state a plausible failure to
protect claim.
The plaintiff alleges that, on the day he was assaulted, inmate Dobson screamed
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unprovoked threats. The plaintiff went to defendant Doe 9 and stated that he was refusing his
housing assignment because inmate Dobson threatened his life. Defendant Doe 9 ordered the
plaintiff to return to his cell to wait for a lieutenant. No one came before the shift changed.
During the next shift, inmate Dobson assaulted the plaintiff. Again, the plaintiff has alleged that
he informed defendant Doe 9 about threats to his life but nothing was done. This allegation also
is sufficient to state a plausible failure to protect claim. The supplemental state law claim for
intentional infliction of emotional distress remains pending against defendant Doe 9.
The plaintiff alleges that defendant Does 7 and 8 put inmate Dobson in his cell. He
alleges no facts suggesting that either defendant was aware that inmate Dobson posed a threat to
the plaintiff’s safety. Rather, he alleges that they were following orders in transferring the
inmates. Absent any allegations demonstrating that defendants Does 7 and 8 knew of and
disregarded an excessive risk to the plaintiff’s safety, the plaintiff fails to state a cognizable
claim against them. The deliberate indifference to safety claim against defendants Does 7 and 8
is dismissed.
F.

Retaliation

The plaintiff asserts four retaliation claims. He alleges, in claim 3, that defendant Allen
retaliated against him by issuing a disciplinary report for refusing a direct order; in claim 6, that
defendants Williams Does 3, 4, 5, and 6 retaliated against the plaintiff by escorting him to
restrictive housing in handcuffs that were too tight; in claim 8, that defendants Richardson and
Claudio retaliated against him with regard to the disciplinary report for failing to obey a direct
order; and, in claim 9, that defendants Does 7 and 8 retaliated against him by placing inmate
Dobson in the plaintiff’s cell.
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To establish a claim for retaliation in contravention of the First Amendment, the plaintiff
must demonstrate “(1) protected speech or conduct, (2) adverse action by defendant, and (3) a
causal connection between the protected speech and the adverse action.” Bilal v. White, 494 F.
App’x 143, 146 (2d Cir. 2012). Even if the plaintiff presents evidence satisfying each element,
the defendants may avoid liability by showing that they “would have disciplined the plaintiff
even in the absence of the protected conduct.” Id. (quoting Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996) (internal quotation marks omitted).
Because claims of retaliation are easily fabricated, the courts consider such claims with
skepticism and require that they be supported by specific facts. Conclusory allegations of
retaliatory conduct are not sufficient. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
A prisoner’s oral speech is subject to limitations. Thus, it may not necessarily constitute
protected activity. See Rodriguez v. Phillips, 66 F.3d 470, 479 (2d Cir. 1995). The Second
Circuit has not yet articulated a bright line rule to determine what oral speech is constitutionally
protected activity to support a retaliation claim. Merely speaking with a correctional officer at
any given time does not constitute protected activity.

To rule otherwise would afford

constitutional protection to every exchange between inmates and staff. See Williams v. Smith,
No. 9:11-cv-0601(LEK/TWD), 2015 WL 1179339, at *10 (N.D.N.Y. Mar. 13, 2015) (verbal
complaint “about problems with [inmate plaintiff’s] braces” not protected conduct); Garrido v.
Coughlin, 716 F. Supp. 98, 101 (S.D.N.Y. 1989) (verbal confrontation between inmate and
correctional officer not protected conduct).
Filing a grievance is a protected activity. That protection also has been extended to
statements of intent to file a grievance. See Shine v. Hofman, 548 F. Supp. 2d 112, 121 (D. Vt.
15

2008) (treating inmate’s stated intent to file grievance as protected activity). The plaintiff alleges
that defendant Allen issued the disciplinary report after he told her that he intended to file a
PREA complaint against her. His statement constitutes protected activity. At this time, the
Court cannot determine whether defendant Allen would have issued the disciplinary report had
the plaintiff not made this statement. Thus, the retaliation claim against defendant Allen will
proceed at this time.
The plaintiff alleges that defendant Richardson found him guilty of the disciplinary
charge based on some of his statements at the hearing and that defendant Claudio did not respond
to the plaintiff’s request to investigate the plaintiff’s claims for excessive force and retaliation.
These retaliation claims are conclusory. The plaintiff alleges no facts suggesting that defendants
Richardson and Claudio acted because he filed the PREA complaint. He merely assumes this to
be true. This is insufficient to support a plausible retaliation claim. The retaliation claims against
defendants Richardson and Claudio are dismissed.
The plaintiff alleges that he was taken to restrictive housing in tight handcuffs in
retaliation for filing the PREA complaint. This occurred right after the plaintiff was interviewed
by high-ranking correctional officers regarding his PREA complaint. Temporal proximity
constitutes circumstantial evidence of retaliation. See Faulk v. Fisher, 545 F. App’x 56, 58 (2d
Cir. 2013) (noting that temporal proximity is circumstantial evidence of retaliation but requiring
further evidence to survive summary judgment).

At this time, the Court will permit the

retaliation claim against defendants Williams and Does 3, 4, 5, and 6 to proceed to enable the
plaintiff to conduct discovery to obtain further evidence to support his claim.
Finally, the plaintiff alleges that defendants Does 7 and 8 retaliated against him by
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putting inmate Dobson in his cell. He specifically alleges, however, that in response to his
question defendants Doe 7 and Doe 8 stated that they were following orders to move the
plaintiff’s cellmate out and inmate Dobson in. Thus, there are no facts suggesting that defendants
Doe 7 and 8 were acting in retaliation. The claim against them is dismissed.
G.

Defamation

The plaintiff asserts three defamation claims. He contends, in claim 3, that defendant
Allen defamed him by issuing the allegedly false disciplinary report for disobeying a direct
order; in claim 8, that defendants Richardson also defamed him in connection with the
disciplinary report for disobeying a direct order; and, in claim 14, that defendants Dubuque, Doe
14, Claudio, and Hall defamed him by issuing a disciplinary report for fighting.
To establish a defamation claim under Connecticut law, the plaintiff must show that the
defendants “published unprivileged false statements that harmed the plaintiff.” Cweklinsky v.
Mobil Chemical Co., 297 F.3d 154, 159 (2d Cir. 2002) (citing Torosynan v. Boehringer
Ingelheim Pharms., Inc., 234 Conn. 1, 27 (1995)).
Regarding the disciplinary report for disobeying a direct order, the plaintiff concedes that
he initially stated that he did not want defendant Allen to search him and that when she did
perform the search he refused to permit her to search his genital area. ECF No. 1-1, ¶ 50. Thus,
the statements that the plaintiff disobeyed the order to permit defendant Allen search him are not
false and do not support a defamation claim. Regarding the fight, the defendants observed the
plaintiff struggling with inmate Dobson. Thus, he was issued a disciplinary report for fighting.
The plaintiff told the defendants that he was defending himself and not the aggressor. The fact
that the plaintiff may have been defending himself does not mean that he was not struggling or
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fighting with inmate Dobson. Thus, the charge is not false, and the disciplinary report is not
defamatory. The plaintiff’s defamation claims are dismissed.
H.

Excessive Force

In claim 6, the plaintiff also contends that defendants Williams and Does 3, 4, 5, and 6
used excessive force against him when they escorted him to restrictive housing in handcuffs that
were too tight. In claim 13, the plaintiff challenges the use of a chemical agent against him by
defendant Doe 10 as excessive and challenged the assault by defendants Doe 11, 12 and 13. The
plaintiff asserts state law claims for assault, battery, and intentional infliction of emotional
distress as a result of the conduct in each claim.
The use of excessive force against a prisoner can constitute cruel and unusual punishment
in violation of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 4 (1992); accord
Wilkins v. Gaddy, 559 U.S. 34, 34, 36 (2010) (per curiam). The “core judicial inquiry” is not
“whether a certain quantum of injury was sustained but rather whether force was applied in a
good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7).
The plaintiff alleges that the tight handcuffs were used right after he was interviewed
regarding his PREA complaint and in retaliation for that complaint. He alleges that he was
sprayed in the face with a chemical agent and assaulted by correctional officers when he was no
longer fighting or resisting any officer. These allegations are sufficient to state plausible claims
that the actions were not a good faith effort to restore or maintain discipline. The excessive force
claims and the supplemental state law claims will proceed at this time.
I.

Deliberate Indifference to Medical and Mental Health Needs
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In claim 5, the plaintiff contends that defendants Botas, Greene, and Dr. Doe 2 were
deliberately indifference to his need for mental health treatment by ignoring his request for
treatment following the incident with defendant Allen. In claim 7, he alleges that defendants
Furtick and Williams were deliberately indifferent to his injuries from the tight handcuffs by
failing to acknowledge that he had been injured.
To state a claim for deliberate indifference to a serious mental health need, the plaintiff
must show both that his need was serious and that the defendants acted with a sufficiently
culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle
v. Gamble, 492 U.S. 97, 104 (1976)). There are both objective and subjective components to the
deliberate indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Objectively, the alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S.
294, 298 (1991).

The condition must produce death, degeneration, or extreme pain.

See

Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). The subjective component requires that
the defendants be actually aware of a substantial risk that the inmate would suffer serious harm
as a result of their actions or inactions. See Salahuddin v. Goord, 467 F.3d 262, 279-80 (2d Cir.
2006).
The plaintiff alleges, in claim 5, that he explained to defendant Botas that he felt afraid,
humiliated, and violated after the encounters with defendant Allen and requested mental health
assistance. Defendant Botas notified the on-call doctor, Dr. Doe 2, and her supervisor, defendant
Greene. None of these defendants provided or arranged for, mental health treatment for the
plaintiff. At this stage of litigation, the Court cannot determine whether the plaintiff suffered a
serious mental health need as a result of the incidents with defendant Allen, or whether the
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failure to provide any treatment was deliberate or negligent.

Accordingly, the Eighth

Amendment deliberate indifference claims against defendants Botas, Greene, and Dr. Doe 2 will
proceed at this time.
The plaintiff alleges that, as a result of the tight handcuffs, he experienced bruising,
abrasions, redness, and swelling. These injuries do not constitute a serious medical need because
they do not produce death, degeneration, or extreme pain. See Bryans v. Cossette, No. 3:11-CV1263(JCH), 2013 WL 4737310, at *10 (D. Conn. Sept. 3, 2013) (numbness in inmate’s wrist
leading to bleeding and abrasions does not constitute serious medical need); see also Perez v.
City of New York, No. 07 Civ. 10319(RJS)(KNF), 2009 WL 1616374, at *9 (S.D.N.Y. June 8,
2009) (“Although the use of excessively tight handcuffs can constitute a violation of the Eighth
Amendment … it appears highly unlikely that … pain in [the plaintiff’s] wrists and pain,
numbness and swelling in his foot and ankle, would be considered sufficiently serious[, in the
absence of evidence the plaintiff suffered any lasting injury from the restraints,] to rise to the
level of an Eighth Amendment violation” (citations omitted)).
Although the plaintiff experienced pain and discomfort from the tight handcuffs, he does
not allege that he suffered any permanent injury. Thus, he fails to state a cognizable deliberate
indifference claim against defendants Williams and Furtick. See Bryans, 2013 WL 4737310, at
*10 (distinguishing Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994), where court found prisoner
alleged serious medical need for too tight restraints resulting in permanent injury, because
Bryans only suffered pain and numbness for three months).
The plaintiff also alleges that defendants Williams and Furtick committed the state tort of
intentional infliction of emotional distress by failing to acknowledge his injury from the tight
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handcuffs. To state a claim for intentional infliction of emotional distress under state law, the
plaintiff must show that the defendants intended to inflict emotional distress or knew or should
have known that emotional distress would likely result from their conduct, that the conduct was
extreme and outrageous, that the defendants’ conduct is the likely cause of the plaintiff’s distress,
and that the plaintiff’s distress is severe. Gagnon v. Housatonic Valley Tourism Dist. Comm’n,
92 Conn. App. 835, 846 (2006). Conduct rising to this level must be extreme and outrageous,
“exceeding all bounds usually tolerated by decent society, of a nature which is especially
calculated to cause, and does cause, mental distress of a very serious kind.” DeLaurentis v. New
Haven, 220 Conn. 225, 267 (1991) (internal quotation marks and citation omitted).
The Court has explained that the injuries from the handcuffs do not rise to the level of a
serious medical need. The actions of defendants Furtick and Williams, failing to acknowledge
the temporary injury from the handcuffs, is not extreme and outrageous to support a claim for
intentional infliction of emotional distress. The claim for intentional infliction of emotional
distress against defendants Williams and Furtick also is dismissed.
J.

Due Process, Equal Protection and Racial Discrimination

In claim 4, the plaintiff alleges that following the submission of his PREA complaint, he
was in the Lieutenant’s officer surrounded by 10–12 high ranking officials. Defendant Williams
summarized the two incidents the plaintiff had reported and asked if the plaintiff wanted him to
contact the state police to investigate the allegations. The plaintiff said yes. Defendant Williams
asked the plaintiff why he did not report the first incident. The plaintiff said that he was
confused, though the touching might have been accidental, and feared retaliation. Defendant
Doe 1 stated that defendant Allen was doing her job, and the plaintiff had to permit her to do her
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job. The plaintiff alleges that he does not believe the state police were contacted because he was
not interviewed regarding his allegations.
The plaintiff asserts claims for denial of due process, denial of equal protection, and
racial discrimination based on these allegations. To support his claim for racial discrimination,
the plaintiff states only that he is Hispanic and that the officers in the room were Caucasian.
Conclusory allegations of racial discrimination are insufficient to support a Section 1983 claim.
McMillan v. Togus Regional Office, Dep’t of Veterans Affairs, 120 F. App’x 849, 852 (2d Cir.
2005); see also Nguedi v. Federal Reserve Bank of New York, No. 1:16-cv-0636-GHW, 2017
WL 2557263, at *5 n.3 (S.D.N.Y. June 12, 2017) (“Plaintiff’s conclusory allegations that he was
arrested ‘[j]ust because [he] is black,’ [and] that his termination was ‘rooted in racism and racial
discrimination,’ … are, of course, insufficient to sustain his claim without the requisite minimal
factual support.”); Horne v. Buffalo Police Benevolent Ass’n, No. 07-CV-781C, 2010 WL
2178813, at *6 (W.D.N.Y. May 28, 2010) (“A plaintiff alleging racial or gender discrimination
must do more than recite conclusory allegations.”). Any claim for racial discrimination is
dismissed.
To support his due process claim, the plaintiff alleges that he has a liberty interest in
having the state police contacted to investigate his PREA complaint. As an alleged victim of a
crime, the plaintiff has no procedural or substantive due process interest in the investigation or
prosecution of the perpetrator. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 468–69
(2005); see also Nieves v. Gonzalez, No. 05-CV-17S(SR), 2006 WL 758615, at *4 (W.D.N.Y.
Mar. 2, 2006) (“[C]ourts within the Second Circuit have determined that ‘[t]here is … no
constitutional right to an investigation by government officials.’”) (citation omitted).
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Research reveals no cases finding a due process right to have correctional staff contact
the state police on behalf of an inmate. The plaintiff does have a First Amendment right to
petition the government for redress of grievances. However, the plaintiff alleges only that the
defendants did not call the state police on his behalf. He does not allege that he was prevented
from calling or writing to the state police to report his allegations. Thus, the plaintiff’s
constitutional rights were not violated. See Adorno v. Semple, No. 3:16-cv-325(MPS), 2016 WL
7469709, at *7 (D. Conn. Dec. 28, 2016) (dismissing as lacking merit claim that prisoner was not
permitted to telephone state police to file criminal complaint where prisoner did not allege that
he was unable to write to state police).
Finally, the plaintiff alleges that he was treated differently from other inmates asserting a
PREA complaint. He states that he believes that other inmates were permitted to report PREA
complaints to the state police, or had the state police contacted on their behalf, to request
investigation into staff conduct.
The Equal Protection Clause protects prisoners from invidious discrimination.

This

provision does not mandate identical treatment for each individual; rather it requires that
similarly situated persons be treated the same. City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439–40 (1985). To state an equal protection claim, the plaintiff must allege facts
showing that he was treated differently from similarly situated individuals and that the reason for
the different treatment was based on “‘impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure
a person.’” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (quoting LeClair v.
Saunders, 627 F.2d 606, 609–10 (2d Cir. 1980)). The plaintiff does not identify any inmate who
23

was treated differently. That he thinks one exists is insufficient to support his claim. In addition,
as discussed above, the plaintiff does not allege that he was prevented from contacting the state
police by phone or letter to request an investigation.
The plaintiff also could assert an equal protection claim based on a “class of one” theory.
To state a valid claim, the plaintiff must allege first that he was intentionally treated differently
from others who are similarly situated. Second, he must allege facts showing that there is no
rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). He must allege an “extremely high” level of similarity with the person to whom he is
comparing himself; their circumstances must be “prima facie identical.” Neilson v. D’Angelis,
409 F.2d 100 (2d Cir. 2005), overruled in part on other grounds by Appel v. Spiridon, 531 F.3d
138, 139 (2d Cir. 2008). The plaintiff argues that a similarly situated person would be a
Hispanic-Latino male with a criminal record. To be prima facie identical, however, that person
would have had to have been subjected to fondling of his genitals through his clothing during a
pat search. The plaintiff identifies no such person who was treated differently. Thus he fails to
allege facts to support an equal protection claim.
K.

No Identified Defendant

Finally, in claim 10, the plaintiff asserts a state law claim for intentional infliction of
emotional distress for placing inmate Dobson in his cell. The plaintiff identifies no defendant in
connection with this claim. Instead he alleges: “Upon plaintiff’s belief, Dobson, who was
mentally ill, was not classified to be placed in the cell and therefore was, intentionally to cause
him distress by the higher ranking aforementioned defendants in furtherance of the retaliating

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conspiracy of the PREA complaint, filing requests and grievances, his gender, race and
nationality.” ECF No. 1-1 at 6, ¶ 69.
The plaintiff is familiar with the practice of utilizing John Doe defendants when he does
not know the name of a particular defendant. In this case, he specifically references fourteen
John Doe defendants in his claims. Thus, his failure to name any defendant to whom the action
of placing inmate Dobson in his cell may be attributed is not the result of lack of knowledge
regarding Doe defendants. It appears that the plaintiff assumes that, because inmate Dobson is
mentally ill and subsequently assaulted him, inmate Dobson was placed in his cell specifically to
achieve that result. Conclusory assumptions are insufficient to state a plausible claim. Absent
any defendant against whom this claim can proceed and factual allegations against that
defendant, the claim is dismissed.
III.

Conclusion
The Court enters the following orders:
(1)

The following claims are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1): all

defamation claims; the due process, equal protection and racial discrimination claim against
defendants Williams and Doe 1 regarding his reporting of the PREA violation; the deliberate
indifference to medical needs and intentional infliction of emotional distress claims against
defendants Williams and Furtick relating to the handcuff injuries; the retaliation claim against
defendants Richardson and Claudio based on the disciplinary report for disobeying a direct
order; the retaliation and deliberate indifference to safety claims against defendants Does 7 and 8
relating to placement of inmate Dobson in the plaintiff’s cell; and the intentional infliction of
emotional distress claim against no defendant.
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(2)

The case will proceed on the following claims:

the Eighth Amendment

supervisory liability claim against Defendant Guadarrama; the Eighth Amendment failure to
intervene claim against Nordby; the Fourth and Eighth Amendment claims against defendant
Allen; the retaliation claim against defendant Allen for issuing the disciplinary report for
disobeying a direct order; the deliberate indifference to mental health needs claim against
defendants Botas, Greene, and Dr. Doe 2; the retaliation, excessive force, assault, battery and
intentional infliction of emotional distress claims against defendants Williams and Does 3, 4, 5,
and 6 relating to handcuffing during the escort to restrictive housing; the due process and
intentional infliction of emotional distress claims against defendants Richardson and Claudio
based on the disciplinary report for disobeying a direct order; the failure to protect claim against
defendant Blatchelly; the failure to protect and intentional infliction of emotional distress claims
against defendant Doe 9 for ordering the plaintiff back to his cell; the excessive force, assault,
battery and intentional infliction of emotional distress claims against defendants Guadarrama and
Does, 10, 11, 12, 13, and 14 for the use of a chemical agent and assault; and the denial of due
process against defendants Dubuque, Claudio, Hall, and Doe 14 regarding the disciplinary report
for fighting.
(3)

Before the Court orders service on the remaining defendants, the plaintiff must

submit a notice stating whether he waives for all time all claims in this action relating to
disciplinary sanctions affecting the duration of his confinement (i.e., the forfeiture of RREC) in
order to proceed with his claims challenging the sanctions affecting the conditions of his
confinement. The plaintiff shall file this notice, in writing using the Prisoner Efiling Program,
within twenty (20) days of the filing date of this Ruling. The Court specifically advises the
26

plaintiff that the Court will deem his failure to file this statement within the required time to
constitute his refusal to waive these claims, and such failure will thus result in the dismissal of
his due process claims. In addition, should the plaintiff elect to proceed on his due process
claims, he shall provide information regarding the sanctions imposed at the disciplinary hearing
for fighting or explain what conditions of confinement he suffered as a result of that guilty
finding.
(4)

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

Local Court Rule 83.1(c)2 provides that the plaintiff MUST notify the court. Failure to do so
can result in the dismissal of the case. The plaintiff must give notice of a new address even if he
is incarcerated. The 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 the plaintiff has more than one pending case, he should indicate all of the case numbers in the
notification of change of address. The plaintiff should also notify the defendant or the attorney
for the defendant of his new address.
(4)

The plaintiff shall utilize the Prisoner Efiling Program when filing documents

with the Court.
SO ORDERED this 20th day of October 2017 at Hartford, Connecticut.
/s/
Michael P. Shea
United States District Judge

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