Abrams v. Erfe et al

Filing 15

RULING (see attached) granting 11 Plaintiff's Motion to Amend Complaint. Pursuant to Rule 15(a)(1), Fed. R. Civ. P., Plaintiff may amend his complaint once as a matter of right within 21 days after service. However, as set forth in th e attached Ruling, after screening the Amended Complaint under 28 U.S.C. § 1915A, the Court finds that the only two claims that may proceed are: (1) the Fourth Amendment claim against Peterson for invasion of privacy during the March 13, 2017 strip search and (2) the Eighth Amendment claim against Watson for unconstitutional conditions of confinement. Defendants must answer the Amended Complaint on or before August 3, 2018. Signed by Judge Charles S. Haight, Jr. on July 3, 2018.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

DAVID A. ABRAMS, No. 241224, a/k/a
ABRAHAMS,

Civil Action No.
3: 17 - CV - 1570 (CSH)

Plaintiff,
v.
WARDEN SCOTT ERFE, CAPTAIN JOHN
WATSON, MAINTENANCE SUPERVISOR
JOHN DOE, AND COUNSELOR TRAPP,
sued in their individual and official capacity;
and COUNSELOR SUPERVISOR
PETERSON, sued in her individual capacity,

JULY 3, 2018

Defendants.

RULING ON PLAINTIFF'S MOTION TO AMEND COMPLAINT [DOC. 11]
Haight, Senior District Judge:
I. INTRODUCTION
On September 20, 2017, pro se Plaintiff David A. Abrams, an inmate currently incarcerated
at Corrigan-Radgowski Correctional Center in Uncasville, Connecticut ("Corrigan"), filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 against various prison officials of Cheshire
Correctional Institution ("Cheshire C.I."), where he was previously housed. Plaintiff alleged a
number of constitutional and state law violations against these defendants, who included: Warden
Scott Erfe, Captain John Watson, Maintenance Supervisor John Doe, Counselor Trapp, and
Counselor Supervisor Peterson. On February 2, 2018, this Court issued its Initial Review Order
("IRO") dismissing all but two of Abrams's claims: (1) the Fourth Amendment claim against
Peterson for invasion of privacy with respect to a strip search during Abrams's transfer to the
1

segregation unit on March 13, 2017; and (2) the Eighth Amendment claim against Watson for acting
with deliberate indifference to the hazardous condition of black mold on the vent in Plaintiff's
segregation cell. See Abrams v. Erfe, No. 3:17-CV-1570 (CSH), 2018 WL 691714, at *19 (D. Conn.
Feb. 2, 2018). The Court permitted those two claims to proceed against Peterson and Watson in their
individual capacities for damages. Id.
Nineteen days later, on February 21, 2018, Abrams filed his "Motion for Leave to File an
Amended Complaint" [Doc. 11] with an attached proposed amended complaint. Plaintiff states that
through his amended complaint, he seeks to: (1) replace the phrase "indecent exposure" with
"public indecency," as stated several times in the complaint; and (2) allege sufficient facts to support
the claims dismissed by this Court in its IRO. Doc. 11, at 1-2 (¶¶ 1-3). For the following reasons,
the Court will GRANT the motion for leave to file an amended complaint and accept the amended
complaint. However, before accepting it, the Court must review the amended complaint and dismiss
any claims which fail to state claims upon which relief may be granted, 28 U.S.C. § 1915A.
II. DISCUSSION
A.

Standard for Leave to Amend - Rule 15, Fed. R. Civ. P.
Pursuant to Rule 15(a), Fed. R. Civ. P., a plaintiff may amend his complaint once as a matter

of course within twenty-one days after service of the complaint or within twenty-one days after
service of a responsive pleading (i.e., answer or motion to dismiss) or of a Rule 12(b), (e), or (f)
motion, whichever is earlier. See Fed. R. Civ. P. 15(a)(1)(A) and (B). See also, e.g., Baines v.
Pillai, No. 3:16-CV-01374 (CSH), 2017 WL 1375168, at *1 (D. Conn. Apr. 10, 2017); Taurus B,
LLC v. Esserman, No. 3:14-CV-715 CSH, 2014 WL 4494398, at *1 (D. Conn. Sept. 12, 2014).
In all other cases, the plaintiff may amend his complaint only with "the opposing party's
2

written consent or the court's leave," which should be "freely give[n] when justice so requires." Fed.
R. Civ. P. 15(a)(2). "In the absence of any apparent or declared reason – such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance
of the amendment, futility of the amendment, etc. – the leave should, as the rules require, be 'freely
given.'" Foman v. Davis, 371 U.S. 178, 182 (1962) (discussing Rule 15(a)). "This relaxed standard
applies with particular force to pro se litigants." Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.
1999). "A pro se complaint is to be read liberally, and should not be dismissed without granting
leave to amend at least once when such a reading gives any indication that a valid claim might be
stated." Id. (emphasis in original; citation, internal quotation marks, and brackets omitted).
In the case at bar, Abrams filed his motion for leave to amend and his amended complaint
within twenty-one days after service of his initial complaint. Therefore, Abrams is entitled to amend
his complaint once as a matter of right under Rule 15(a)(1). The Court will thus grant the motion
to amend and accept the amended complaint. The remaining issue the Court must resolve is which
claims may now proceed under 28 U.S.C. § 1915A.
B. Standard for Screening under Section 1915A
Because the amended complaint will become the operative complaint in this action, the Court
must perform its mandatory screening of the claims under 28 U.S.C. § 1915A to determine whether
they state claims upon which relief may be granted. In its IRO, the Court set forth the applicable
standard of review for analyzing a pro se prisoner's civil rights complaint under this statute. 2018
WL 691714, at *1-2 . Specifically, pursuant to § 1915A, the Court must review the complaint and
dismiss any portion that "(1) is frivolous, malicious, or fails to state a claim upon which relief may
3

be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." See 28
U.S.C. § 1915A(b)(1)-(2).1 Highly detailed allegations are not required, but the complaint "must
contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S 544,
570 (2007)).2 "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678. The complaint must provide "more than the unadorned, the-defendantunlawfully-harmed-me accusation." Id. "A pleading that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550
U.S. at 555).
"Although all allegations contained in the complaint are assumed to be true, this tenet is

1

See also 28 U.S.C. § 1915(e)(2)(B), which applies to plaintiffs who have been granted in
forma pauperis ("IFP") status and provides:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that–
...
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
Plaintiff is pro se and has IFP status so § 1915(e) imposes an additional duty on this Court to review
his amended complaint to dismiss any claims which may not afford him relief.
2

The Second Circuit has consistently adhered to the United States Supreme Court's seminal
plausibility standard set forth in Iqbal. See, e.g., Giunta v. Dingman, No. 17-1375-CV, __F.3d__,
2018 WL 3028686, at *3 (2d Cir. June 19, 2018); Bd.-Tech Elec. Co. v. Eaton Corp., No.
17-3829-CV, __F. App'x__, 2018 WL 2901336 (2d Cir. June 11, 2018); Allco Fin. Ltd. v. Klee, 861
F.3d 82, 94 (2d Cir. 2017).
4

'inapplicable to legal conclusions.'" LaMagna v. Brown, 474 F. App'x 788, 789 (2d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678). Therefore, the Court is not "bound to accept conclusory allegations
or legal conclusions masquerading as factual conclusions." Faber v. Metro. Life Ins. Co., 648 F.3d
98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir.2008) (internal
quotation marks omitted)). "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
555).
Because Plaintiff is a pro se litigant, his "[p]ro se submissions are reviewed with special
solicitude, and 'must be construed liberally and interpreted to raise the strongest arguments that they
suggest.'" Matheson v. Deutsche Bank Nat'l Tr. Co., 706 F. App'x 24, 26 (2d Cir. 2017) (quoting
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)(per curiam)). See also Sykes
v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (same); Tracy v. Freshwater, 623 F.3d 90, 101-02
(2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
Despite being subject to liberal interpretation, a pro se plaintiff's complaint still must "state
a claim to relief that is plausible on its face." Mancuso v. Hynes, 379 F. App'x 60, 61 (2d Cir. 2010)
(quoting Iqbal, 556 U.S. at 678). Therefore, even in a pro se case, "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) (citation and internal quotation marks omitted). Nor may
the Court "invent factual allegations that [the plaintiff] has not pled." Id.
C. Plaintiff's Amended Claims
Although Abrams fails to designate which of the previously dismissed claims he seeks to
reinstate, he notes that he has supplemented his allegations from page 13, paragraph 64, to the end
5

of page 21. Doc. 11, at 1-2. Based on the Court's review of his amended complaint, two claims
Plaintiff has attempted to supplement, in an effort to reinstate them into this action, are his Eighth
Amendment claims against Trapp: sexual abuse and retaliation. As to defendant Trapp, he also now
attempts to state a tort claim for fraud against her for "falsely accusing him of exposing himself to
her." Do. 11-1, ¶ 102. In addition, Plaintiff seeks to expand his Fourth Amendment claim regarding
an unreasonably "intrusive strip search" to challenge the policy itself as unreasonable. Id., ¶¶ 75-85.
To clarify, the entire list of claims Plaintiff now attempts to assert in his amended complaint
include: sexual abuse or harassment by Trapp in violation of the Eighth Amendment; Fourth and
Eighth Amendment claims against Peterson, Watson, and Erfe for an unreasonably intrusive strip
search conducted on March 13, 2017; retaliation and fraud against Trapp; Fourth Amendment claim
that the "strip search" policy at Cheshire C.I. is generally unconstitutional; Eighth Amendment claim
against Watson and Erfe for acting with deliberate indifference to the hazardous condition of black
mold on the vent in Plaintiff's segregation cell; and negligence against Maintenance Supervisor Doe
for failing to maintain a hazard free living condition of confinement regarding the black mold on
Plaintiff's cell vent in segregation.3 Plaintiff also requests declaratory relief as to each of his claims.
3

The state law claims Plaintiff now attempts to plead are fraud against Trapp and negligence
against Doe. In his original complaint, Abrams had raised the following state law claims: (1)
negligence against Trapp for sexually harassing Abrams; (2) slander against Trapp for filing a false
disciplinary report; (3) negligence against Watson and Erfe for "failure to maintain hazard free living
conditions in segregation" (regarding "the black mold on the vents" in the segregation unit); and (4)
negligence against Peterson for failing to investigate the PREA claims Plaintiff wished to pursue
against Trapp. Doc. 1, ¶¶ 88-89, 95, 101. The Court held that all but the negligence claim against
Watson failed to derive from a common nucleus of operative fact with the remaining federal claims
so that the Court could not exercise supplemental jurisdiction over them. 2018 WL 691714, at *17.
Moreover, in any event, the negligence claim against Watson was barred by Conn. Gen. Stat.
§ 4-165, under which "state employees may not be held personally liable for their negligent actions
performed within the scope of their employment," Miller v. Egan, 265 Conn. 301, 319 (2003) (citing
Conn. Gen. Stat. § 4-165). See 2018 WL 691714, at *18. All of Plaintiff's state law claims were
6

The Court will review these claims to determine which, if any, may proceed as stating a claim upon
which relief may be granted.
1.

Eighth Amendment Claim of Sexual Abuse

In his initial complaint, Abrams attempted to state an Eighth Amendment sexual abuse claim
against Trapp. In his Amended Complaint, he has once again pled such a claim with the following
allegations. In January 2017, while he was housed at the Cheshire Correctional Institution ("C.I."),
he was employed to clean showers. Doc. 11-1, ¶ 10. Counselor Trapp (a female) was the inmate
counselor for Unit 3, where Abrams resided. Id., ¶¶ 11-12. In February 2017, Abrams asked Trapp
for "state soap and envelopes . . . to which he [was] not entitled . . . because he was employed." Id.,
¶ 13. Trapp allegedly smiled at Abrams and said, "See, life can be made easy for you in here." Id.,
¶ 15. She handed Abrams four bars of soap and four pre-stamped envelopes. Id. Abrams replied,
"Thanks, I appreciate you!" Id., ¶ 16. Trapp allegedly responded by saying, "Do you really? We’ll
see on my tour." Id.
According to Plaintiff, over the next few days, Trapp stopped by Abrams's cell door between
12:30 p.m. and 1:30 p.m. and watched him work out while wearing only his gym shorts. Id., ¶ 17.
On these occasions, Trapp allegedly smiled at Abrams and gave him a "thumbs-up" signal. Id. On
four different occasions over the next couple of weeks, Trapp "would stop by [Abrams's] cell while
his cell window was partially covered for privacy" and watch Abrams "urinate, masturbate, and
washup while [he was] fully naked" after working out. Id., ¶ 18. She would allegedly smile at
Abrams for three to five seconds and then continue on her tour. Id. During this time, Trapp gave
Abrams multiple bars of soap and envelopes, which Abrams sold to other inmates in the unit for

thus dismissed.
7

profit. Id., ¶ 20.
Abrams alleges that "[d]ue to her strong[,] masculine . . . features," he found Trapp to be
"extremely unattractive" so he was "an unwilling participant in her inappropriate conduct." Id.,
¶ 21. Nevertheless, he did not want to report her out of "fear of embarrassment, ridicule," and
retaliation, or as he describes, "what Trapp could do to him and for him." Id., ¶ 22.
On numerous occasions, Abrams allegedly "went to see Trapp for a printout of his inmate
account or to get soap and envelopes." Id., ¶ 24. During these times, Trapp would allegedly pose
provocatively, "bend[ing] over at the waist," "spread[ing] her legs while seated in front of him,"
and/or "lean[ing] forward with her loose-fitted, low-cut blouse" exposing her cleavage. Id., ¶¶ 2426. Abrams states that he "would laugh to himself" because he "found her unattractive" in that she
was "built like a 12 year old girl." Id., ¶ 25.
On March 3, 2017, Abrams argued with Trapp "over his placement at the bottom of the list
for industry jobs that pay up to $150 monthly."

Id., ¶ 27.

Afterward, Abrams stopped

communicating with Trapp; and Trapp no longer stopped at Abrams's cell door during her tour of
the unit. Id., ¶¶ 27-28.
On March 13, 2017, administrators placed Cheshire on "modified lockdown" because
Governor Malloy was touring the facility. Id., ¶ 29. During this time, no inmates were permitted
in any area outside of their cells except for those inmates who worked in the facility's industry unit,
which included Abrams's cellmate. Id., ¶¶ 30, 33. Sometime between 11:30 a.m. and 11:45 a.m.
on that date, Abrams alleges he partially covered his cell window for privacy. Id., ¶ 35. He decided
to take advantage of the lockdown to do personal grooming ("groom his pubic area" or perform
"manscaping," as he terms it) while naked. Id. He retrieved his beard trimmer, removed all of his
8

clothing, and began his task "over his toilet" in his cell. Id., ¶¶ 37-38. While trimming his hair, he
saw the shadow of a figure move in front of the cell window and then walk away. Id., ¶¶ 40-41.
Abrams could not identify the person at the window so "continued to 'manscape.'" Id., ¶ 42.
Relying on the Second Circuit’s decisions in Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir.
1997), and Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015), the Court previously dismissed
Abrams's Eighth Amendment claim against Trapp because the facts alleged did not rise to the level
of severity to create a constitutional harm. 2018 WL 691714, at *5-7. "In order to determine
whether alleged sexual abuse rises to the level of an Eighth Amendment violation, one must examine
the particular facts set forth in the claim." Id., at *5. After closely reviewing the facts, the Court
summarized as follows:
Unlike in Crawford, there has been no alleged sexually suggestive or any other kind
of physical contact between Trapp and the Plaintiff. Rather, Abrams alleges that
Trapp gave him soap and envelopes, watched him work out in his gym shorts,
observed him through his cell window, smiled at him during times of partial privacy
(as he carried out acts of hygiene), and on at least two occasions, posed in allegedly
seductive or provocative manners in Abrams's presence. None of these incidents was
"severe" enough to be deemed "objectively, sufficiently serious."
Id., at *6.
Abrams did not claim that there was any physical contact by Trapp, nor did he allege that he
was traumatized as a result of Trapp's behavior. He even reaffirmed in his Amended Complaint that
he found her suggestive conduct laughable due to her "unattractive" appearance. Doc. 11-1, ¶ 72
(He "would laugh to himself because Trapp was built like a 12 year old girl in his opinion and he
found her unattractive."). Moreover, Trapp had a valid penological interest in observing Abrams
during her rounds as a guard at Cheshire C.I.. 2018 WL 691714, at *7.

"Observing prisoners

through their cell windows is incidental to one's official and necessary duties as a prison guard." Id.
9

In sum, Trapp's conduct, as alleged, was not "cumulatively egregious" or sufficiently "repugnant
to the conscience of mankind" to rise to the level of an Eighth Amendment claim for sexual abuse.
Id. (quoting Boddie, 105 F.3d at 861, and Crawford, 796 F.3d at 257).
In his amended complaint, Abrams challenges the Court's finding that Trapp had a valid
penological interest in observing him through his cell window. He argues that it is not normal
practice for female correction staff members to look into an inmate's cell when the window is
covered; and in this case, there were "no exigent circumstance[s] to prompt Counselor Trapp to look
into [his] cell." Doc. 11-1, ¶¶ 66-70.4
However, as Plaintiff alleged in his amended complaint, Trapp was brief in viewing Plaintiff
as she made her rounds of the cells. While "doing her tour and passing out paperwork," Trapp
generally stopped at his window for "three to five seconds" and then resumed her tour of the cell
block. Doc. 11-1, ¶ 18. Moreover, on March 13, 2017, the day he allegedly 'manscaped' with his
window partially covered, the prison was observing heightened security (on "modified lockdown")
during Governor Malloy's visit. Id., ¶¶ 29-30. On that date, Plaintiff only saw "a shadow of
someone walking away." Id., ¶ 41. He "never saw who was at the door watching him . . . [so] he
continued to 'manscape.'" Id., ¶ 42. Plaintiff was thus unable to determine whether a male guard, a
prison official, or even a fellow prisoner walked by his cell window on that day. He also does not
know how long or directly that person may have viewed him.

4

Plaintiff admitted in his complaint, and again in his amended complaint, that he was never
even able to identify who went past his window on Mar 13, 2017, when he was grooming himself
or 'manscaping.' He simply alleged that he saw "a shadow of someone walking away." Doc. 11-1,
¶ 41. He "never saw who was at the door watching him . . . [so] he continued to 'manscape.'" Id.,
¶ 42. Because he did not see who was at his door, he has no proof or details regarding Trapp's
observation of him on March 13, 2017.
10

In addition, Plaintiff focuses on Trapp's suggestive behavior whenever he went to see her
to retrieve his inmate account or for soap and envelopes. He alleges that she would turn her back
to him, bend over at the waist, spread her legs, and look back up at him with a smile. Id., ¶ 71. On
occasion, she would also lean forward and expose her cleavage while standing at her desk. Id., ¶ 73.
However, as discussed supra, that behavior never escalated into any sexual proposition or physical
contact. Moreover, rather than being offended or traumatized, Abrams's reaction was one of mirth.
He "would laugh to himself" because he thought "Trapp was built like a 12-year-old girl . . . and he
found her unattractive." Id., ¶ 72.
When examined in their totality, Plaintiff's allegations in his amended complaint regarding
his Eighth Amendment claim against Trapp fail to cure the deficiencies of those in the initial
complaint. "To constitute a constitutional violation, there must be 'severe or repetitive sexual abuse'
which is 'cumulatively egregious,' Boddie, 105 F.3d at 861, or conduct which is 'repugnant to the
conscience of mankind' such that it is 'incompatible with evolving standards of decency,' Crawford,
796 F.3d at 257." 2018 WL 691714, at *7. Although Trapp's alleged conduct may have been
unprofessional and inappropriate, it did not rise to the level of constitutional harm contemplated by
Boddie and Crawford.
Moreover, Abrams has reaffirmed the Court's finding that, rather than being harmed or
traumatized by Trapp's behaviour, he was admittedly amused, causing him to "laugh to himself."
Doc. 11-1, ¶ 72. Abrams's request to reinstate his Eighth Amendment claim against Trapp for
sexual abuse is denied.
The Court notes that under his sexual abuse claim, Plaintiff also includes language alleging
an "invasion of privacy" by Trapp in viewing him during "manscaping." Doc. 11-1, at 13. Courts
11

in this Circuit and around the country have recognized that a prisoner's privacy interest must be
balanced against the State's legitimate equal employment and penological interests. Incidental, brief
viewing of an inmate's naked body by an opposite sex guard has been held not to violate the inmate's
constitutional rights. See, e.g., Baker v. Welch, No. 03CIV.2267(JSR)(AJP), 2003 WL 22901051,
at *20 (S.D.N.Y. Dec. 10, 2003) (indicating that "a female parole officer is allowed to conduct a
urine test of a male parolee and observe the test from a distance that does not provide a direct view
of the male parolee's genitals"). See also Rogers v. Clark, 94–CV–0444, 1996 WL 328218
(W.D.N.Y. June 11, 1996) ("Bashfulness is not a protectable fundamental right or liberty interest.
Further, to the extent that a glance at the unclothed body of a prisoner from a member of the opposite
sex might be considered a search worthy of Fourth Amendment scrutiny, the incident was utterly
harmless."); Sinclair v. Stadler, No. 03–30456, 78 F. App'x. 987, 989 (5th Cir. Oct. 28, 2003)
("[T]he state's policy of using female officers to supervise the living areas of [plaintiff's] prison unit
is reasonably related to legitimate penological objections, including flexibility in security personnel
staffing and equal employment opportunity."); Sattler v. Foster, No. 01–35733, 37 F. App'x 311,
312 (9th Cir. June 10, 2002) ("Occasional viewing of male prisoners by female correctional officers
does not violate the Fourth Amendment right to privacy or the Eighth Amendment prohibition
against cruel and unusual punishment."); Johnson v. Phelan, 69 F.3d 144, 146–47 (7th Cir.1996)
("Unless female guards are shuffled off to back office jobs, . . . they are bound to see the male
prisoners in states of undress. . . . . Otherwise they are not doing their jobs ... If only men can monitor
showers, then female guards are less useful to the prison ..."), cert. denied, 519 U.S. 1006 (1996);
Letcher v. Turner, 968 F.2d 508, 510 (5th Cir.1992) ("[T]his Court [has] held that no constitutional
violation occurs when naked male inmates are viewed by female guards if the presence of female
12

guards is required to protect a legitimate government interest such as maintaining security at a
correctional facility."). Observing prisoners briefly in their cells, even those of the opposite sex, is
an incidental and necessary duty of the position of being a guard.
In the case at bar, the "manscaping" incident of which Plaintiff complains – i.e., allegedly
being viewed by Trapp, a female guard, at a distance, through a window, and during the middle of
a "lockdown" – involves a situation where the prison has a valid penological interest in maintaining
security by checking on inmates. Furthermore, as to this event, Plaintiff was unable to assert that
he witnessed her watching him so he cannot claim that he noted something improper in that
viewing.5 All he alleges is that a shadow of someone briefly passed his window. Doc. 11-1, ¶¶ 4142. If he had been concerned with his modesty, nothing prevented him from dressing or concealing,
rather than exposing, his genitals. In sum, whether framed as a claim for invasion of privacy or
sexual abuse, Plaintiff has failed to state a plausible claim against Trapp.
2.

Retaliation

In his amended complaint, Abrams once again claims that Trapp filed a false disciplinary
report against him for exposing himself to her in retaliation for an argument he had with her about

5

The Court notes that Trapp concedes that she looked into Plaintiff's cell on March 13, 2017,
because she wrote up the incident in a disciplinary report in which she accused him of exposing
himself to her. Doc. 1, at 30. Trapp thus wrote:
On Monday, March 13, 2017 at 11:45 A.M., while touring South Block 2, Inmate
Abrahams [known as Abrams in this case] intentionally exposed his penis through
his boxers while I was looking through his cell door. Due to his intentional exposure,
Inmate Abrahams is being issued a Class A DR for public indecency.
Id. That charge was allegedly proven during an evidentiary hearing before a hearing officer. Doc.
1, at 31 ("Disciplinary Process Summary Report"). See n.6, infra, discussing term "public
indecency."
13

job placement and his decision to stop speaking with her afterward. Doc. 11-1, ¶¶ 86-90. In its IRO,
the Court summarized its findings as follows:
Nothing in the report or its investigation suggests a link between any
protected speech or conduct by Plaintiff and the disciplinary report. The argument
Plaintiff allegedly had with Trapp was "over his placement at the bottom of the list
for industry jobs that pay up to $150 monthly." Doc. 1, ¶ 71. The argument had no
bearing on Trapp's alleged "sexual abuse and invasion of privacy" of Plaintiff. Id.,
¶ 70. "Cases supporting retaliation claims for inmate statements concern actions
taken in response to the inmate filing a grievance, instituting a lawsuit or making a
complaint to prison officials regarding the conduct of correctional staff." Riddick, [v.
Arnone, No. 11 Civ. 631 (SRU)], 2012 WL 2716355, at *7 [(D. Conn. July 9, 2012)]
(citing Ramsey v. Goord, 661 F.Supp.2d 370 (W.D.N.Y. 2009)). Any complaints that
Plaintiff made regarding Trapp's conduct were made after her disciplinary report, not
before it. Doc. 1, ¶¶ 50-51. Therefore, there are no indications that the alleged
argument involved any protected speech.
Furthermore, "[w]ith regard to false misbehavior reports, the type of evidence
required to establish a causal connection between the plaintiff's protected conduct
and the alleged retaliation include temporal proximity, prior good discipline, a
finding of not guilty at the disciplinary hearing and statements from the defendants
regarding their motives." See Barclay v. New York, 477 F. Supp. 2d 546, 558
(N.D.N.Y. 2007). In this case, the report against Abrams was made more than a week
after his alleged fight with Trapp; Abrams was found guilty at the disciplinary
hearing, and there are no statements by Trapp to suggest she had a retaliatory motive
in filing the report. In sum, Plaintiff has failed to sufficiently allege that he engaged
in protected speech causally connected to the disciplinary report. He has also failed
to allege facts to show that the report was false and/or motivated by retaliation.

2018 WL 691714, at *8. Abrams failed to allege a link between any protected speech and the
disciplinary report so failed to state a plausible First Amendment retaliation claim against Trapp.
Id.
In his amended complaint, Abrams challenges the validity of the disciplinary report,
claiming that it was "false" and "fraudulent."6 Doc. 11-1, ¶¶ 91-97. He argues that "[t]he fraudulent
6

Throughout his amended complaint, Plaintiff makes much of the fact that he has substituted
"public indecency" in place of "indecent exposure." Doc. 11, at 1. He asserts that his cell is not
14

nature of the disciplinary report tends to support [his] contention that Trapp was motivated by
retaliation.” Id., ¶ 97. The Court does not agree. Plaintiff's allegations that the report was false are
both conclusory and discredited by the evidence. Plaintiff was found guilty based on the charge in
Trapp's report after an evidentiary hearing before a Hearing Officer. He was thus afforded an
opportunity to present evidence on his behalf to challenge the report. He failed in this effort and
was found guilty. Seeking a second bite at the apple, he now states in conclusory fashion that the
report was false, demonstrating that Trapp had a retaliatory motive in filing it. Such bare-bones,
conclusory allegations are insufficient to prove retaliation.7

"public" so that the charge against him was "fraudulent" and "invalid." Doc. 11-1, at ¶ 94. The
Court need not focus, however, on the prison's exact terminology of the charge and/or whether a
state-controlled prison cell is "public," where the meaning behind the charge is clear: rather than
preserving his own personal privacy, Plaintiff allegedly exposed himself in an indecent manner to
a female guard. See also Hudson v. Palmer, 468 U.S. 517, 527, 530 (1984) (noting that "it would
be literally impossible" to maintain security "if inmates retained a right of privacy in their cells" and
holding that "prisoners have no legitimate expectation of privacy [in their cells] " so that "the Fourth
Amendment's prohibition on unreasonable searches does not apply in prison cells").
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"The Second Circuit has stated that courts must approach prisoner retaliation claims 'with
skepticism and particular care,' since 'virtually any adverse action taken against a prisoner by a prison
official – even those otherwise not rising to the level of a constitutional violation – can be
characterized as a constitutionally proscribed retaliatory act.'" Jones v. Goord, No. 905-CV-1438
DNH/RFT, 2009 WL 790978, at *5 (N.D.N.Y. Mar. 23, 2009) (quoting Dawes v. Walker, 239 F.3d
489, 491 (2d Cir. 2001)).
Moreover, "[e]ssentially, a court should not overturn a prison disciplinary board's finding of
guilt if there is any evidence to support the board's conclusion." Franco v. Kelly, 854 F.2d 584, 588
(2d Cir.1988). See also Chapple v. Keane, 903 F. Supp. 583, 585 (S.D.N.Y. 1995) (holding allegedly
false misbehavior report by prison guard, "which specified plaintiff's conduct, provides appropriate
evidence to support the hearing officer's finding of guilt on one charge").
In the case at bar, the record of the Plaintiff's disciplinary hearing, signed by Hearing Officer
King, indicated that on the date in question, the unit logbook confirmed the announcement that
Trapp, a female, would be in the unit where Plaintiff was housed. Doc. 1, at 31. Nonetheless,
despite this advance notice of Trapp's presence, the "inmate Abrahams [known as Abrams, in this
case] was observed in his boxers with his penis showing through the slit of the boxers intentionally
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Even had Trapp's report contained inaccuracies, there are no facts to suggest that it was filed
with fraudulent intent or in retaliation for an argument between Trapp and Abrams about job
placement or for any protected speech. Because Abrams has failed to allege any additional facts
showing a link between protected speech and the disciplinary report at issue, his First Amendment
retaliation claim is once again dismissed.
3.

Fraud

To the extent Plaintiff intends to insert a fraud claim against Trapp based on her allegedly
false disciplinary report, that claim must be dismissed on two grounds. First, absent a related federal
claim against Trapp in this action, the fraud claim fails to derive from a common nucleus of
operative fact with a federal claim herein. See 28 U.S.C. § 1367(a) ("[I]n any civil action of which
the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States Constitution.");
United Mine Workers v. Gibbs, 383 U.S. 715, 725-29 (1966). Therefore, the Court cannot exercise
supplemental jurisdiction over this state law fraud claim where the related federal claims are
dismissed.
Furthermore, and in any event, the fraud claim fails to state a claim upon which relief may
be granted. Under Connecticut common law, "[t]he elements of a fraud action are: (1) a false
representation was made as a statement of fact; (2) the statement was untrue and known to be so by
its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other

exposing himself." Id. The Hearing Officer "found the inmate guilty at the hearing based on the
evidence, staff observation and documentation submitted." Id.
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party relied on the statement to his detriment...." Weinstein v. Weinstein, 275 Conn. 671, 685 (2005)
(emphasis added). See also Master-Halco, Inc. v. Scillia Dowling & Natarelli, LLC, 739 F. Supp.
2d 109, 114 (D. Conn. 2010)(same). Here, Trapp made no statement to Plaintiff with the purpose
of inducing his reliance upon it, to his detriment. The fraud claim must be dismissed.
4.

Intrusive Strip Search

In its IRO, the Court permitted Plaintiff's claim regarding an intrusive strip search to proceed
against Peterson. After reviewing cases regarding strip searches and/or viewing of undressed
prisoners by opposite sex guards, such as Holland v. City of New York, 197 F. Supp. 3d 529, 543
(S.D.N.Y. 2016) and Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir. 1980), the Court held as follows:
Reading the pro se prisoner's complaint liberally, assuming the truth of its
allegations and "interpret[ing] his complaint to raise the strongest arguments it
suggests," Abbas [v. Dixon], 480 F.3d [636,] 639 [(2d Cir. 2007)], the search took
place "directly in front of" an opposite-sex guard – in a manner that was not
"indirect," "incidental," or "brief" – without a pending emergency or exigent
circumstances, such as a violent disturbance. Such a direct and close view of an
inmate's body during a search by an opposite sex guard may plausibly give rise to a
Fourth Amendment claim for invasion of privacy. Plaintiff’s claim may therefore
proceed against Officer Peterson, in her individual capacity, at this time.

2018 WL 691714, at *11.
Plaintiff now seeks also to assert that the general strip search policy at Cheshire is
unconstitutional because it was more thorough than the searches inmates undergo when "returning
from court" or "an outside hospital visit," during a "random strip search," or generally being placed
in segregation. Doc. 11-1, ¶¶ 74-75. In particular, Plaintiff prefers the procedure where a prisoner
gets to "squat down and cough while fully naked," rather than "bend at the waist and spread his butt
cheeks." Id., ¶¶ 75-76. He also objects to the prison's rule that an inmate be subjected to punitive

17

measures should he fail to submit to a strip search.
None of these allegations are sufficient to state a claim for an unreasonable strip search
policy. Under Turner v. Safley, 482 U.S. 78, 107 (1987), a prison "regulation is valid if it is
reasonably related to legitimate penological interests." This determination involves four factors:
[(1)] whether there is a valid, rational connection between the prison regulation and
the legitimate governmental interest put forward to justify it; [(2)] whether there are
alternative means of exercising the right in question that remain open to prison
inmates; [(3)] whether accommodation of the asserted constitutional right will have
an unreasonable impact upon guards or other inmates, and upon the allocation of
prison resources generally; and [(4)] whether there are reasonable alternatives
available to the prison authorities.
Covino v. Patrissi, 967 F.2d 73, 78-79 (2d Cir. 1992) (citing Turner, 482 U.S. at 89-90). It is the
prisoner's burden to show that a challenged prison regulation is unreasonable. Id. at 79.
Here, Plaintiff has failed to prove that Cheshire's regulation regarding strip searches is
unreasonable. The Supreme Court has recognized that "correctional officials must be permitted to
devise reasonable search policies to detect and deter the possession of contraband in their facilities."
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328, 344-45 (2012). For
example, "courts in this District have uniformly held, in light of the Supreme Court's decision in
Florence, that '[t]he general practice of strip searching a detainee during housing searches and on the
way to and from court appearances is not unconstitutional, even if the detainee is accused only of
a misdemeanor.'" Keaton v. Ponte, No. 16 CIV. 3063 (KPF), 2017 WL 3382314, at *12 (S.D.N.Y.
Aug. 4, 2017) (citing Thompson v. City of N.Y., No. 16 Civ. 824 (PKC), 2017 WL 1929552, at *2
(S.D.N.Y. May 9, 2017) (collecting cases)). See also Perkins v. City of New York., No. 14 Civ.
3779 (WHP), 2017 WL 1025987, at *2 (S.D.N.Y. Mar. 15, 2017) ("Strip searches are permissible
provided that the search is tied to legitimate security interests, a determination that is peculiarly
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within the province and professional expertise of correctional officers. . . . And random strip searches
may be conducted even in detainees' housing units.") (citations and internal quotation marks
omitted); Myers v. City of New York, No. 11 CIV. 8525 (PAE), 2012 WL 3776707, at *9 (S.D.N.Y.
Aug. 29, 2012) ("[U]nder the standard outlined in Florence, the searches to which [plaintiff] was
subjected were "reasonably related to legitimate security interests," including preventing the
smuggling of contraband into or out of [the jail in which plaintiff was confined].") (quoting
Florence, 566 U.S. at 326), aff'd, 529 F. App'x 105 (2d Cir. 2013).
In the case at bar, a Connecticut Department of Corrections ("DOC") regulation requires a
strip search upon a prisoner's placement in specialized housing. See State of Connecticut
Administrative Directive 6.7 ("Searches Conducted in Correctional Facilities"), at § 5(A)). That
regulation is "reasonable and valid" because it is "reasonably related to legitimate penological
interests" – ensuring that no weapon or contraband item is being transported when a prisoner is
transferred into the specialized housing unit. Holloway v. Dep't of Corr., No. 3:11-CV-1290 (VLB),
2013 WL 4834657, at *5 (D. Conn. Sept. 10, 2013).
Here, the strip search conducted upon Plaintiff's transfer to segregation was an effective
means of examining the Plaintiff's body cavities for contraband or weapons. To the extent he
dislikes the means employed, there are no facts to suggest that the search was conducted for sexual
gratification or for some other harmful purpose. See Crawford v. Cuomo, 796 F.3d 252, 258 (2d Cir.
2015) ("[A] search may not be undertaken maliciously or for the purposes of sexually abusing an
inmate")). A strip search is an inherently intrusive procedure so that absent a form of proven abuse,

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it is considered valid, as long as it is reasonable and linked to a legitimate penological purpose.8
Accordingly, Plaintiff's claim under the Fourth Amendment relating to the "strip search"
policy at Cheshire fails to state a plausible claim and will be dismissed. However, the intrusive strip
search claim may proceed against Peterson for the reasons previously stated.
5.

Claims Against Erfe and Doe - Hazardous Conditions of Confinement

In his amended complaint, Plaintiff has attempted to reinsert Warden Erfe and John Doe,
"Maintenance Supervisor of Cheshire C.I.," as defendants in the hazardous conditions of
confinement claim. Doc. 11-1, at 20 (¶¶ 105, 108), at 24 (¶¶ 3, 5). As in its IRO, the Court
dismisses Erfe and Doe from this action. Plaintiff has again failed to demonstrate that either
defendant was "involved in, or even aware of, the black mold in the segregation unit." 2018 WL
691714, at *15 (citing Merriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989) (to impose
supervisory liability prisoner must allege that official had actual or constructive notice of
unconstitutional practices and demonstrated gross negligence or deliberate indifference by failing
to act)). Abrams included Erfe and Doe solely due to their supervisory roles at Cheshire C.I., but
their positions alone do not show personal involvement in a constitutional violation.
Furthermore, to the extent that Plaintiff attempts to allege negligence against Doe, that claim
is barred by Conn. Gen. Stat. § 4-165, under which "state employees may not be held personally

8

As the Second Circuit has recognized, "[r]egardless of who performs the search, a visual
body cavity search is invasive: 'A strip search that involves a stranger peering without consent at a
naked individual, and in particular at the most private portions of that person's body, is a serious
invasion of privacy.'" Holland v. City of New York, 197 F. Supp. 3d 529, 542 (S.D.N.Y.
2016)(quoting Harris v. Miller, 818 F.3d 49, 58 (2d Cir.2016)). Because such a search is invasive
by nature, it must be conducted without abuse.

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liable for their negligent actions performed within the scope of their employment," Miller v. Egan,
265 Conn. 301, 319 (2003) (citing Conn. Gen. Stat. § 4-165).
6.

Declaratory Relief

Plaintiff's requests for declaratory relief are once again dismissed. As the Court previously
explained in its IRO, "[d]eclaratory relief operates prospectively 'to enable parties to adjudicate
disputes before either side suffers great damage.'" 2018 WL 691714, at *18 (quoting In re
Combustion Equip. Assocs., Inc., 838 F.2d 35, 37 (2d Cir. 1988)). In particular, "[t]o obtain
prospective relief, such as a declaratory judgment or an injunction, a plaintiff must show, inter alia,
"a sufficient likelihood that he [or she] will again be wronged in a similar way." Marcavage v. City
of New York, 689 F.3d 98, 103 (2d Cir. 2012) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111
(1983)), cert. denied, 568 U.S. 1212 (2013). "That is, a plaintiff must demonstrate a 'certainly
impending' future injury." Marcavage, 689 F.3d at 103 (citing Whitmore v. Arkansas, 495 U.S. 149,
158 (1990)).
In the case at bar, the plausible claims that may proceed – the Fourth Amendment claim
against Peterson for invasion of privacy during the strip search and the Eighth Amendment claims
against Watson for unconstitutional conditions of confinement – concern past problems during
incarceration at Cheshire C.I., a facility where Plaintiff was previously housed. Plaintiff is now
housed in Corrigan so that there is no alleged ongoing or future suffering. Because Plaintiff has not
identified any prospective legal relationships or issues that require resolution via declaratory relief,
his claims for declaratory relief will be dismissed.
III. CONCLUSION
In light of the fact that Plaintiff filed his request to amend his complaint within twenty-one
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days after service, he may amend his complaint once as a matter of course under Rule 15(a), Fed.
R. Civ. P.

His pending motion to amend [Doc. 11] is thus GRANTED.

However, because Plaintiff is "a prisoner [who] seeks redress from a governmental entity or
officer or employee of a governmental entity," pursuant to the Court's "screening" duty under 28
U.S.C. § 1915A, the Court shall "dismiss . . . any portion of the complaint, if the complaint – (1) is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such relief."
In particular, to the extent that Abrams has, through the allegations in his Amended
Complaint, requested to reinstate dismissed claims , that request is DENIED. These claims include:
sexual abuse by Trapp in violation of the Eighth Amendment; Fourth and Eighth Amendment claims
against Watson and Erfe for an unreasonably intrusive strip search conducted on March 13, 2017;
retaliation against Trapp; Fourth Amendment claim that the "strip search" policy at Cheshire C.I. is
generally unconstitutional, and Eighth Amendment claims against Watson and Erfe for acting with
deliberate indifference to the hazardous condition of black mold on the vent in Plaintiff's segregation
cell. Because Plaintiff has failed to allege sufficient additional facts to warrant reinstatement, each
and every one is DISMISSED.
Plaintiff's newly pled state law claims for fraud against Trapp and negligence against Doe
are also DISMISSED. There is no basis for this Court to exercise supplemental jurisdiction over the
fraud claim; and neither the fraud claim nor the negligence claim states a claim upon which relief
may be granted. In addition, Plaintiff's requests for declaratory relief, which have no basis in
prospective harm, are DISMISSED.
The Amended Complaint [Doc. 11-1] is hereby accepted as the operative complaint with
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respect solely to: (1) the Fourth Amendment claim against Peterson for invasion of privacy during
the March 13, 2017 strip search and (2) the Eighth Amendment claim against Watson for
unconstitutional conditions of confinement. Defendants must answer the Amended Complaint on
or before August 3, 2018.
The foregoing is So Ordered.
Signed: New Haven, Connecticut
July 3, 2018

/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States Judge

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