Abrams v. Waters et al

Filing 17

INITIAL REVIEW ORDER (see attached). Upon the Court's review of Plaintiff's Complaint pursuant to 28 US.C. § 1915A, the case may proceed only on the following federal claims: Eighth Amendment claim for "excessive force" again st Phillips, Eighth Amendment claim for "failure to protect" from harm against Nunez, and Eighth Amendment hazardous "conditions of confinement" claim against Watson. Each federal claim is permitted against the defendant solely in his individual capacity for money damages. Abrams's state law claims of assault, battery, and intentional infliction of emotional distress may proceed against Phillips in his individual capacity for damages. All other state law claims and all requests for declaratory relief are DISMISSED. Signed by Judge Charles S. Haight, Jr. on February 2, 2018. (Dorais, L.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

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

Civil Action No.
3: 17 - CV - 1659 (CSH)

Plaintiff,
v.
CORRECTIONS OFFICER WATERS AND
CAPT. NUNEZ, sued in their individual
capacities; CORRECTIONS OFFICER
PHILLIPS; DISCIPLINARY REPORT
INVESTIGATOR KELLY; CAPT. JOHN
WATSON; WARDEN SCOTT ERFE;
MAINTENANCE SUPERVISOR JOHN
DOE; and MAILROOM HANDLER
CORRECTIONS OFFICER RAMIREZ, sued
in their individual and official capacity,

FEBRUARY 2, 2018

Defendants.

INITIAL REVIEW ORDER
Haight, Senior District Judge:
Pro se plaintiff David A. Abrams, currently incarcerated at the Corrigan-Radgowski
Correctional Institution ("Corrigan") in Uncasville, Connecticut, has brought this civil rights action
against various prison officials and employees of Cheshire Correctional Institution ("Cheshire C.I."),
the prison where he was formerly housed, in Cheshire, Connecticut. The defendants include
Corrections Officer Waters, Captain Nunez, Corrections Officer Phillips, Investigator Kelly, Captain
Watson, Warden Erfe, Supervisor John Doe, and Corrections Officer Ramirez (herein collectively
"Defendants"). Abrams is suing Waters and Nunez in their individual capacities and all other

1

defendants in their individual and official capacities. He is seeking monetary damages and
declaratory relief.
With respect to procedural history, Magistrate Judge Garfinkel granted Abrams's motion to
proceed in forma pauperis on October 13, 2017. See Doc. 5. The Court now reviews Abrams's
Complaint to determine whether his claims are "frivolous" or may proceed under 28 U.S.C. § 1915A.
For the following reasons, the Court dismisses his complaint in part.

I. STANDARD OF REVIEW
Under 28 U.S.C. § 1915A, the Court must review a prisoner's civil complaint and dismiss
any portion that "(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." See 28
U.S.C. § 1915A(b)(1)-(2). Although highly detailed allegations are not required, 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)).1 "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, thedefendant-unlawfully-harmed-me accusation." Id. "A pleading that offers 'labels and conclusions'

1

The Second Circuit has consistently adhered to the United States Supreme Court's seminal
"plausibility" standard set forth in Iqbal. See, e.g., Allco Fin. Ltd. v. Klee, 861 F.3d 82, 94 (2d Cir.
2017); Christine Asia Co. v. Ma, No. 16-2519-CV, 2017 WL 6003340, at *1 (2d Cir. Dec. 5, 2017);
Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 401 (2d Cir.2015); New Jersey
Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013).
2

or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550
U.S. at 555).
"[W]hether a complaint states a plausible claim for relief will [ultimately] . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and common
sense." Id. at 663-64. When "well-pleaded factual allegations" are present, "a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at
679. Factual disputes do not factor into a plausibility analysis under Iqbal and its progeny.
"Although all allegations contained in the complaint are assumed to be true, this tenet is
`inapplicable to legal conclusions.'" LaMagna v. Brown, 474 F. App'x 788, 789 (2d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678). See also Amaker v. New York State Dept. of Corr. Servs., 435 F.
App'x 52, 54 (2d Cir. 2011) (same). Accordingly, 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)). Consequently, "[t]hreadbare 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).
With respect to pro se litigants, it is well-established that "[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); Boykin
3

v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008) ("A document filed pro se is to be liberally construed
and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.") (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)); Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (Where the plaintiff proceeds pro
se, a court is "obliged to construe his pleadings liberally.") (quoting McEachin v. McGuinnis, 357
F.3d 197, 200 (2d Cir. 2004)); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) ("In reviewing a
pro se complaint, the court must assume the truth of the allegations, and interpret them liberally to
"raise the strongest arguments [they] suggest[].").
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 pleaded. Id.

II. FACTUAL ALLEGATIONS
In April and May of 2017, while incarcerated at Cheshire C.I., Abrams wrote to his Unit
Manager, Captain Nunez, requesting that he be moved out of the cell he shared with "high security"
inmate William Carrilli, who was "well known for his racist views." Doc. 1 ("Complaint"), ¶ 57.
Nunez did not act on Abrams's request. Id. On July 6, 2017, after Carrilli complained to Nunez that
he and Abrams were not getting along, Nunez promptly moved Abrams to an empty cell. Id., ¶ 58.
During the move, Abrams explained to Nunez that he only had one disciplinary ticket in his file in

4

16 years and asked Nunez not to place another "high security" inmate in his new cell. Id. Later that
day, Kashawn Brown, another "high security" inmate, was placed in Abrams's cell. Id., ¶ 60.
Abrams protested to the cell-block correction officer, but the officer told him that there was "nothing
he could do about it and that [Abrams] would have to talk to Nunez about the situation." Id.
Brown had just been transferred from Corrigan to Cheshire C.I. after spending nearly a
month in segregation for assaulting his cellmate. Id., ¶¶ 61-62. He had been involved in two
previous fights with his cellmates over the previous year. Id., ¶ 63.
On August 4, 2017, at approximately 12:15 p.m., Brown attacked Abrams while Abrams was
sitting on his bed watching television. Id., ¶ 16. Brown punched Abrams multiple times on the side
of his face. Id., ¶ 17. Abrams became "slightly dazed" and tried to "shake . . . off" the attack. Id.
After punching Abrams several times, Brown banged on the cell door and screamed for an officer.
Id., ¶ 18. The officer's station was located approximately twenty feet from Abrams's cell. Id., ¶ 19.
Correction Officer Waters came to Abrams's cell to identify the problem. Id., ¶ 20. Brown
told Waters to "call the code blue ([the] code for inmates fighting) because he [was] done." Id.
When Waters asked Brown what he meant, Brown charged at Abrams again and hit him several
times in front of Waters. Id. Waters yelled, "Code Blue! Code Blue! Stop fighting! Stop fighting!"
Id., ¶ 21. After enduring multiple punches, Abrams stood up to defend himself, which prompted
Brown to retreat to the cell door. Id., at ¶ 22. Immediately thereafter, the cell door opened, and
officers handcuffed Brown on the floor of the unit. Id., at ¶ 23. They did not use mace spray on
Brown. Id.
As Corrections Officers Johnson and Phillips entered the cell, Abrams stumbled forward and
collided with a chair. Id., ¶ 24. At that moment, Correction Officer Phillips sprayed him with mace.
5

Id. When Abrams bent forward to cover his eyes and gasp for air, Phillips picked him up and
"slamm[ed] him to the floor causing his face to hit the floor." Id., ¶ 25. Phillips then proceeded to
handcuff Abrams and told him to "stop resisting," even though Abrams was lying on the floor
coughing. Id., ¶ 26. Johnson then helped Abrams to his feet. Id., ¶ 27. The officers transported
Abrams to the medical unit to treat his injuries and then placed him in a segregation unit. Id., ¶ 28.
As a result of the attack, Abrams was breathing heavily, had "an extremely elevated blood
pressure," had "knots on the side of his face and on his forehead," and "severe swelling" around his
eyes. Id., ¶ 29. Captain Dimitrix and Lieutenant Marquis witnessed the incident and questioned
Abrams about it. Id., ¶ 30. The entire incident was recorded on camera, and the footage was
preserved via request to Correction Officer McMahon on August 6,2017. Id.
Due to the swelling near Plaintiff's both eyes, the nurse in the medical unit suggested that
Plaintiff's eye socket might be fractured. Id., ¶ 31. Abrams was therefore taken to the UCONN
Health Center to be examined. Id.
When he arrived at the UCONN Health Center, a nurse named Lisa informed Abrams that
he might indeed have a fractured eye socket due to the swelling without bruising. Id., ¶ 32. Nurse
Lisa arranged for Abrams to undergo a CAT scan. Id., ¶ 33. One hour later, she informed Abrams
that he did not have a fractured eye socket but that he had suffered a hairline fracture to his nose,
causing the swelling around his eyes.. Id., ¶ 34. Abrams told the nurse that Brown never punched
him in his nose. Id., ¶ 35. The nurse responded that he most likely sustained the fracture when
Officer Phillips slammed him to the floor. Id., ¶¶ 35-37. She recommended that Abrams apply ice
to his face for a few days, placed him on a soft diet, and advised him to sleep with his head elevated.
Id., ¶ 39. She also advised Plaintiff that he might have a concussion. Id.
6

When he arrived back at Cheshire from the UCONN Health Center, Abrams was escorted
to segregation. Id., ¶ 40. Before placing him in the segregation unit, officers strip searched Abrams
in accordance with Cheshire C.I. policy. Id. When asked about the strip search by another inmate
in segregation, Correction Officer Watson stated that it was "facility policy." Id., ¶ 82.
On August 7, 2017, three days after the incident, Investigator Kelly called Abrams to his
office to hear his version of the facts and ascertain whether Abrams was going to plead guilty to the
disciplinary report for fighting. Id., ¶ 41. Abrams told Kelly that the fact that a disciplinary report
had been issued against him was "crazy" and "bogus." Id., ¶ 42. He also asked Kelly why Officer
Waters, who had been the person to witness the attack and who had called the "code blue," was not
the officer who wrote up the report.. Id. Abrams also told Kelly that he "didn't fight back" and that
Waters and the camera footage would corroborate his version. Id., ¶ 43. Kelly responded by telling
Abrams, "It doesn’t work like that around here . . . ." Id., ¶ 44. Abrams then replied, "Cut the
bullshit! I’ve been around for a long time. . . . The ticket is bogus." Id.
After spending a week in the segregation unit, Abrams notice what appeared to be black mold
on the vent in his cell and informed Captain Watson about it. Id., ¶ 45. Abrams had observed such
mold on the segregation cell vents when he had been housed there five months earlier. Id. Watson
said to Abrams, "Stay out of seg[regation] and you won't have to worry about it." Id., ¶ 46.
On August 16, 2017, while in segregation, Abrams mailed correspondence to a referral
service in an attempt to obtain legal counsel for his civil and criminal cases. Id., ¶ 85. The
correspondence contained a brief description of each case, including two civil cases against Cheshire
correctional staff. Id., ¶ 86. The words "legal mail" were printed in two different places on the
envelope. Id., ¶ 87. One week later, Abrams learned that his correspondence was returned to
7

Cheshire because the "post office was unable to forward [it]'" after Plaintiff had been transferred to
Corrigan on August 23, 2017. Id., ¶ 89. A month later, on September 13, 2017, Abrams received
the correspondence at Corrigan and discovered that the envelope had been opened out of his presence
and forwarded to him. Id., ¶ 90.
During his disciplinary hearing on August 22, 2017, Officer King dismissed the charge
against Plaintiff for fighting with Brown. Id., ¶ 47. He based his decision on the facts that Brown
had pled guilty to assaulting Abrams and had no injuries; Abrams had sustained injuries; and in the
absence of video footage, no one could refute Abrams's version of the case. Id. On August 23, after
spending twenty days in segregation, Abrams was transferred from Cheshire C.I. to Corrigan. Id.,
¶ 48.
III. DISCUSSION
The Court will assess each of Abrams's claims to determine whether any claim "is frivolous,
malicious, or fails to state a claim upon which relief may be granted," or a claim that "seeks
monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b)(1)- (2).
A.

Claims Against Defendants in their Official Capacities
Abrams seeks monetary relief against all defendants in their individual and official capacities,

with the exception of Waters and Nunez, whom he is suing only in their individual capacities. To
the extent that Abrams seeks money damages from the defendants in their official capacities, the
claims are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159 (1985);
Quern v. Jordan, 440 U.S. 332, 342 (1979). "The Eleventh Amendment precludes suits against
states unless the state expressly waives its immunity or Congress abrogates that immunity." Li v.
Lorenzo, No. 16-3530, 2017 WL 4410586, at *1 (2d Cir. Oct. 4, 2017) (citing CSX Transp., Inc. v.
8

N.Y. State Office of Real Prop. Servs., 306 F.3d 87, 94-95 (2d Cir. 2002)). "This includes suits
against state officials in their official capacities." Li, 2017 WL 4410586, at *1 (citing Davis v. New
York, 316 F.3d 93, 101-02 (2d Cir. 2002)). See also Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 101 (1984) ("The Eleventh Amendment bars a suit against state officials when the state
is the real, substantial party in interest.") (citation and internal quotation marks omitted); Santiago
v. New York State Dep't of Corr. Servs., 945 F.2d 25, 28 n. 1 (2d Cir.1991) ("When the action is in
essence one for the recovery of money from the state, the state is the real, substantial party in interest
and is entitled to invoke its sovereign immunity from suit even though individual officials are
nominal defendants.") (citation and internal quotation marks omitted). Accordingly, claims brought
against corrections officer defendants in their official capacities are properly dismissed for lack of
jurisdiction.
In contrast, as to injunctive relief, the United States Supreme Court stated in Edelman v.
Jordan, 415 U.S. at 664 (1974 ), that the Eleventh Amendment does not bar an action against a state
official for violation of federal law if the plaintiff seeks an injunction regarding that official's future
conduct. See also Feng Li v. Rabner, 643 F. App'x 57, 57-59 (2d Cir. 2016) ("As to the individual
defendants, generally, state officials are not immune under the Eleventh Amendment if the
"complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective." ) (quoting Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635,
645 (2002)) (internal quotation marks omitted). However, Plaintiff does not request injunctive relief
against any of the state official defendants. Accordingly, all of Plaintiff's claims against the
defendants in their official capacities are hereby DISMISSED pursuant to 28 U.S.C. § 1915A(b)(2).

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B.

Claims Against Erfe, Doe, and Ramirez
In his Complaint, Abrams names Warden Erfe, Supervisor Doe, and Officer Ramirez as

defendants with respect to his alleged constitutional deprivations. Plaintiff does not, however, allege
that any of these three supervisory defendants was personally involved in the acts giving rise to these
claims. Rather, he appears to sue them based merely on their positions as supervisors at Cheshire
C.I.
"It is well settled . . . that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994) (citation and internal quotation marks omitted); see also Johnson v. Glick, 481
F.2d 1028, 1034 (2d Cir. 1973) (doctrine of respondeat superior does not suffice for claim of
monetary damages under § 1983). A plaintiff who sues a supervisory official in his individual
capacity for monetary damages must allege that the official was "personally involved" in the
constitutional deprivation in one of four ways:

(1) the official directly participated in the

deprivation; (2) the official learned about the deprivation through a report or appeal and failed to
remedy the wrong; (3) the official created or perpetuated a policy or custom under which
unconstitutional practices occurred; or (4) the official was grossly negligent in managing
subordinates who caused the unlawful condition or event. Wright, 21 F.3d at 501; Hernandez v.
Keane, 341 F.3d 137, 145 (2d Cir. 2003). "In addition, supervisory liability may be imposed where
an official demonstrates gross negligence or deliberate indifference to the constitutional rights of
inmates by failing to act on information indicating that unconstitutional practices are taking place."
Wright, 21 F.3d at 501 (citation and internal quotation marks omitted). Therefore, in order to state
plausible claims against these three supervisory officials, Abrams must allege a causal link between
10

the conduct of the supervisory officials, or lack thereof, and his injury. See Poe v. Leonard, 282 F.3d
123, 140 (2d Cir. 2002).
In the case at bar, Abrams fails to allege that Erfe, Doe, and Ramirez were involved in, or
even knew about, the constitutional violations for which he seeks to hold them liable. See
Meriwether 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
demonstrate[d] 'gross negligence' or 'deliberate indifference' by failing to act") (quoting McCann v.
Coughlin, 698 F.2d 112, 125 (2d Cir.1983)). Abrams simply alleges that Erfe, as the warden at
Cheshire C.I., failed to correct what Abrams views as an unconstitutional policy of strip searching
inmates upon entry to segregation. Id., ¶ 107. However, he fails to allege that Erfe was responsible
for this policy or was negligent in managing his subordinates in implementing it.2
Similarly, Abrams alleges that Doe and Erfe, as supervisors, failed "to maintain a hazard
free condition of confinement" regarding the mold on Abrams's cell vent in the segregation unit. Id.,
¶¶ 94, 110. However, Plaintiff does not allege that either of these defendants was aware of the mold
or of any conditions in the segregation unit which may have caused the mold to be present.
In addition, Abrams seeks to hold Ramirez liable for interfering with his legal mail because
he "is the facility's mail handler [and] is responsible for incoming [and] outgoing mail." Id., ¶ 91.

2

The Court takes judicial notice that pursuant to State of Connecticut Department of
Corrections ("DOC") Administrative Directive 6.7, the prison must conduct a strip-search of an
inmate "upon initial placement in a specialized housing unit, to include ... administrative segregation
... [and] restrictive housing." See Admin. Directive 6.7(5)(A)(6)(a) and (h). The fact that Plaintiff
was strip searched when he was placed in segregation complied with Connecticut's DOC
administrative directives.
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Plaintiff does not, however, allege that Ramirez knew about the situation regarding his legal
correspondence.
In sum, based on the allegations in the Complaint, Abrams has attempted to sue Erfe, Doe,
and Ramirez based solely on each of their supervisory roles at Cheshire C.I., which is insufficient
to allege personal involvement in any constitutional deprivation. See Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir. 1985) (dismissing claims for lack of defendants' "personal involvement" where
"plaintiff's claim for monetary damages against these [supervisory official] defendants requires a
showing of more than the linkage in the prison chain of command; the doctrine of respondeat
superior does not apply"); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) ("In this Circuit
personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under §1983;" so the fact that Commissioner was in high position of authority
was an insufficient basis for personal liability). Accordingly, Plaintiff's claims against Erfe, Doe,
and Ramirez are hereby DISMISSED.
C.

Eighth Amendment Excessive Force Claim
"[T]he use of excessive physical force against a prisoner may constitute cruel and unusual

punishment [even] when the inmate does not suffer serious injury." Wilkins v. Gaddy, 559 U.S. 34,
34 (2010) (quoting Hudson v. McMillian, 503 US. 1, 4 (1992)). However, "not 'every malevolent
touch by a prison guard gives rise to a federal cause of action.'" Wilkins, 559 U.S. at 37 (quoting
Hudson, 503 U.S. at 9); see also Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (not every push or
shove violates prisoner's constitutional rights); Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.
1993) ("Hence, a de minimis use of force will rarely suffice to state a constitutional claim.").

12

To establish a claim of excessive force under the Eighth Amendment, the prisoner must
satisfy a subjective and objective component. See, e.g., Sims, 230 F.3d at 20-21. "The subjective
component of the claim requires a showing that the defendant had the necessary level of culpability,
shown by actions characterized by ‘wantonness' in light of the particular circumstances surrounding
the challenged conduct." Id. at 21 (citation and internal quotation marks omitted). With respect to
excessive force, the subjective component requires a showing that official's use of physical force was
exerted "maliciously and sadistically rather than as part of 'a good faith effort to maintain or restore
discipline.'" Wilkins, 559 U.S. at 40 (quoting Hudson, 503 U.S. at 9).
The objective component "focuses on the harm done" in light of contemporary standards of
decency, but the amount of harm that must be shown depends on the nature of the claim. Sims, 230
F.3d at 21; Banks v. Cty. of Westchester, 168 F. Supp.3d 682, 688 (S.D.N.Y. 2016). Some degree
of injury ordinarily will be required. Banks, 168 F. Supp.3d at 688. However, the prisoner does not
have to show that he sustained a significant injury in order to prevail on an excessive force claim.
Sims, 230 F.3d at 22; Wilkins, 559 U.S. at 37. A prisoner sufficiently states an Eighth Amendment
claim if he "alleges facts from which it could be inferred that prison officials subjected him to
excessive force, and did so maliciously and sadistically . . . ." Sims, 230 F.3d at 22.
In the instant case, Abrams alleges that Phillips used excessive force on him, in violation of
his Eighth Amendment right to be free from cruel and unusual punishment, by picking him up and
"slamming" him face -first to the concrete floor of the cell after Abrams was attacked by Brown.
Doc. 1, ¶¶ 50-56. Plaintiff's allegations fulfill both the objective and subjective prongs to state a
plausible claim of excessive force against Phillips. After spraying his eyes with mace, Phillips
allegedly "slammed [Abrams] to the floor causing his face to hit the floor." Id., ¶ 51. At that point,
13

the altercation between Brown and Plaintiff had ended. Brown was hand-cuffed, lying on the floor;
and Plaintiff was bent over, covering his eyes and gasping for air. Id., ¶¶ 49, 51. Under such
circumstances, Phillips was not subduing a prisoner who was engaged in a fight or who was resisting
him. Therefore, Phillips's alleged behavior involved the unnecessary and wanton infliction of pain,
in this case fracturing Plaintiff's nose. Moreover, such behavior defied contemporary standards of
decency. Subjectively, where no conflict was in progress at that time, Brown having exited the cell,
it can be inferred that Phillips's exercise of such gratuitous force was applied for purposes of hurting
Abrams, rather than a "good-faith effort to maintain or restore discipline." Hudson, 503 U.S. at 7.
Plaintiff's excessive force claim will proceed against Phillips in his individual capacity.
D.

Eighth Amendment Failure to Protect Claim
The Eighth Amendment requires prison officials to "take reasonable measures to guarantee

the safety of . . . inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). "[P]rison officials have
a duty . . . to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan,
511 U.S. 825, 833 (1994) (internal quotations omitted). However, not every injury suffered by one
prisoner from another prisoner establishes constitutional liability on the part of the prison official
responsible for the victim. Id. at 834. A prison official violates the prisoner's Eighth Amendment
protection against cruel and unusual punishment only when the following two requirements are
satisfied. Id.
First, the prisoner must prove that the deprivation was "objectively, sufficiently serious."
Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 298). If the claim is based on the official's
failure to prevent harm, the plaintiff must prove that he is "incarcerated under conditions posing a
substantial risk of serious harm." Id. To determine whether the prisoner faced an excessive risk of
14

serious harm, courts "look at the facts and circumstances of which the official was aware at the time
he acted or failed to act." Hartry v. County of Suffolk, 755 F. Supp. 2d 422, 436 (E.D.N.Y. 2010)
(internal quotations and citation omitted).
Secondly, the prisoner must prove that the prison official acted with a "sufficiently culpable
state of mind." Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 302-03). This requirement
is based on the principle that "only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment." Id. (quoting Wilson, 501 U.S. at 297). The prison official must have known
of and disregarded an excessive risk to the prisoner's health or safety. Id. at 837. Whether an
official had knowledge of a substantial risk of harm is a question of fact "subject to demonstration
in the usual ways, including inference from circumstantial evidence." Id. at 842. Therefore, "a
factfinder may conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious." Id. The question under the Eighth Amendment is "whether prison officials,
acting with deliberate indifference, exposed a prisoner to a sufficiently substantial 'risk of serious
damage to his future health." Id. at 843 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)).
In the case at bar, Abrams alleges that on July 6, 2017, after he was attacked by inmate
Carrilli, he personally asked Captain Nunez "that he not be paired up with another 'high security'
prisoner" as a cellmate. Doc. 1, ¶ 58. Nevertheless, ignoring that request, at 9:15 pm on that night,
Nunez placed inmate Brown, who had a history of assaulting his cellmates, in Abrams's cell. Id.,
¶¶ 61-63. One month later, Brown assaulted Abrams in their cell, punching him repeatedly and
thereby causing him injuries. Id. ¶¶ 16-18, 29. Construed liberally, these allegations plausibly state
an Eighth Amendment claim against Nunez for failure to protect Abrams from harm.

15

Brown had been transferred to Cheshire C.I. immediately following a month spent in
segregation for assaulting a previous cellmate and knocking him unconscious. Doc. 1, ¶¶ 61-62.
Moreover, Brown was labeled a "high security" risk inmate, having "been involved in 2 previous
attacks on his cellmates over the past year and involved in another fight." Id., ¶¶ 62-63. Placing
Abrams in the same cell with Brown, who has a history of attacking cellmates, may be interpreted
as deliberate difference to exposing Abrams to an excessive risk of serious harm. Abrams had asked
Nunez on that very day that he not be placed with such an individual. Under these allegations, it
may be inferred that Nunez had "knowledge of a substantial risk of harm" to Abrams in placing a
"high security" risk inmate like Brown in Abrams's cell. At the screening stage, construing the
alleged facts liberally, interpreting them to make the strongest argument that they suggest, Plaintiff's
allegations make out a plausible Eighth Amendment failure to protect claim. Plaintiff may thus
proceed against defendant Nunez on this claim for monetary damages in his individual capacity.
E.

Eighth Amendment Conditions of Confinement Claim
To state an Eighth Amendment claim for unconstitutional conditions of confinement, a

prisoner must allege facts demonstrating the failure of prison officials to provide for his "basic
human needs—e.g., food, clothing, shelter, medical care, and reasonable safety." DeShaney v.
Winnebago Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). A prisoner may prevail on an Eighth
Amendment claim based on unconstitutional conditions of confinement "only where he proves both
an objective element – that the prison officials' transgression was 'sufficiently serious' – and a
subjective element – that the officials acted, or omitted to act, with a 'sufficiently culpable state of
mind,' i.e., with "deliberate indifference to inmate health or safety." Phelps v. Kapnolas, 308 F.3d
180, 185 (2d Cir. 2002) (quoting Farmer, 511 U.S. at 834).
16

A condition is objectively serious if it "'pose[s] an unreasonable risk of serious damage to
[a prisoner’s] future health.'" Phelps, 308 F.3d at 185 (quoting Helling, 509 U.S. at 35). Thus, the
"objective component relates to the seriousness of the injury." Davidson v. Flynn, 32 F.3d 27, 29
(2d Cir. 1994). To "establish an objective deprivation, the inmate must show that the conditions,
either alone or in combination, pose an unreasonable risk of serious damage to his health, which
includes the risk of serious damage to physical and mental soundness." Darnell v. Pineiro, 849 F.3d
17, 30 (2d Cir. 2017) (citations and internal quotation marks omitted). "There is no 'static test' to
determine whether a deprivation is sufficiently serious; instead, 'the conditions themselves must be
evaluated in light of contemporary standards of decency.'" Id. (quoting Blissett v. Coughlin, 66 F.3d
531, 537 (2d Cir. 1995)). The Second Circuit has clarified that the alleged "unsanitary conditions
of confinement must be assessed according to two components, severity and duration, on a
case-by-case basis." Darnell, 849 F.3d at 30 (discussing Willey v. Kirkpatrick, 801 F.3d 51, 66-68
(2d Cir. 2015)).
To meet the subjective component, the prisoner must allege that the official knew "of and
disregard[ed] an excessive risk to inmate health or safety," that is, that he was "aware of facts from
which the inference could be drawn that a substantial risk of serious harm exist[ed], and … dr[e]w
that inference." Phelps, 308 F.3d at 185-86. See also Wilson v. Seiter, 501 U.S. 294, 303
(1991)(holding it is "appropriate to apply 'deliberate indifference' standard articulated in Estelle [v.
Gamble, 429 U.S. 97 (1976) ]" to cases of "inhumane conditions of confinement, failure to attend
to [a prisoner's] medical needs, or a combination of both"). The prisoner may state an Eighth
Amendment claim based on allegations that the official, with deliberate indifference, exposed him

17

to an unsafe condition that posed an unreasonable risk of serious harm to his future health. 509 U.S.
at 34-35.
Here, Abrams alleges that Captain Watson exposed him to a hazardous condition of
confinement by dismissing his complaint about the black mold on the vent in his segregation cell.
Doc. 1, ¶¶ 45-46. According to Abrams, when he informed Watson about the mold, Watson said,
"Stay out of seg[regation] and you won't have to worry about it." Id., ¶ 46. Abrams's allegation that
he was exposed to black mold in his cell satisfies the objective component of the Eighth Amendment
standard. Courts in this District have repeatedly found mold to pose a substantial risk of danger to
a prisoner's health. See, e.g., Barney v. Semple, No. 3:17-CV-685 (AWT), 2017 WL 2380165, at *2
(D. Conn. May 31, 2017) ("The court concludes that the alleged conditions are sufficient to support
a plausible claim for unconstitutional conditions of confinement" where plaintiff alleged, inter alia,
that he was exposed to "black and yellow mold" in the Q-building, where he was housed.); Wade v.
Chapdelaine, 17 Civ. 350 (JAM), 2017 WL 1479417, *2 (D. Conn. Apr. 24, 2017) (prisoner's
exposure to friable asbestos and mold constitutes objectively substantial risk of serious harm);
Toliver v. Comm’r Semple, 16 Civ. 1899 (SRU), 2016 WL 7115942, *2 (D. Conn. Dec. 6, 2016)
(same).
In addition, Plaintiff has met the subjective prong of his claim, alleging that Watson was
aware of the mold on the segregation cell vent but was deliberately indifferent to the risk it posed
to Abrams's health. In particular, upon being informed about the mold on Abrams's cell vent,
Watson merely replied by telling Abrams to "stay out" of segregation if he wished to avoid it. Id.,
¶¶ 45- 46. In sum, Watson disregarded the mold, which posed "an excessive risk" to Plaintiff's

18

safety. Phelps, 308 F.3d at 185-86. Based on these allegations, Abrams has stated a plausible Eighth
Amendment "conditions of confinement" claim against Watson. That claim may proceed.
F.

Fourth and Eighth Amendment Claims for Intrusive Strip Search
Abrams claims that the strip search he was forced to undergo before transfer to the

segregation unit violated his Fourth and Eighth Amendment rights. Doc. 1, ¶ 107. In particular, in
his Complaint, Plaintiff alleges that he "was subjected to an intrusive strip search in which he was
ordered to bend over at the waist and spread his butt cheek per 'protocol' before being placed in his
segregation cell." Id., ¶ 80. He fails to allege any facts to prove that the search was done improperly
or to explain why he believes that searching a prisoner before placing him in segregation is
unconstitutional.
Furthermore, Plaintiff fails to designate who performed or ordered the search and/or whom
his claim is against. The only defendant Plaintiff mentions in regard to this claim is Captain Watson,
who stated that the search was "facility policy." Doc. 1, ¶ 82. The Court will thus analyze the claim
generally, to determine whether it states a plausible claim for a constitutional violation.
1. Fourth Amendment
Although "the Fourth Amendment proscription against unreasonable searches does not apply
within the confines of a prison cell, Hudson v. Palmer, 468 U.S. 517, 526 (1984), . . . maintenance
of prison security is not burdened unduly by the recognition that [prisoners] do retain a limited right
to bodily privacy, Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992)." Harris v. Miller, 818 F.3d 49,
57 (2d Cir. 2016) (lateral citation omitted). The Fourth Amendment protects prisoners against overly
intrusive body cavity searches. Harris, 818 F.3d at 57. "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
19

court must determine whether the inmate has exhibit[ed] an actual, subjective expectation of bodily
privacy; and (2) second, the court must determine whether the prison officials had sufficient
justification to intrude on [the inmate's] [F]ourth [A]mendment rights." Id. (quoting Covino, 967
F.2d at 77-78) (internal quotation marks omitted).
Moreover, "[i]f the inmate's claim challenges a prison regulation or policy, courts typically
analyze the claim under Turner v. Safley, 482 U.S. 78, 107 (1987)." Harris, 818 F.3d at 57 (lateral
citation omitted). "Under Turner, the regulation is valid if it is reasonably related to legitimate
penological interests." Id. at 57-58 (internal quotation marks omitted). This 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.
Abrams claims that, on August 4, 2017, before placing him in the segregation unit, prison
officials subjected him to a strip search. Doc. 1, ¶¶ 40, 80. When Chauncey Moore, a prisoner in
a neighboring cell in segregation, questioned Watson about "this type of intrusive strip search,"
Watson told him that it was "facility policy." Id. at ¶ 82. Plaintiff argues that this policy must only
exist at Cheshire C.I. because he "has been incarcerated for 17 years at MacDougall C.I., Walker
C.I., and Corrigan C.I. and has never experienced this type of strip search." Id., ¶ 81. Standing alone,
these allegations do not meet the burden of establishing that the prison strip search policy is
unreasonable.
20

Abrams does not contest Watson's statement that the search was conducted in accordance
with Cheshire's policy. Aside from alleging that Plaintiff was not subject to strip searches at other
facilities, Abrams makes no attempt to show that the strip search at Cheshire was unreasonable or
unrelated to a penological interest.
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
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).
21

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 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. See, e.g., Holloway v. Dep't of Corr., No. 3:11-CV-1290 (VLB), 2013 WL
4834657, at *5 (D. Conn. Sept. 10, 2013) ("The parties do not contest the fact that subsection 5(A)
of Administrative Directive 6.7 which requires that an inmate be strip-searched when he or she is
placed in either administrative segregation or a restrictive housing unit is reasonable and valid.")
(citing State of Connecticut Administrative Directive 6.7 ("Searches Conducted in Correctional
Facilities"), at § 5(A)).3
Because Plaintiff's Fourth Amendment claim regarding an intrusive strip search fails to state
a plausible claim, it will be DISMISSED.
2.

Eighth Amendment

Abrams' allegations regarding the strip search also do not state an Eighth Amendment claim.
The Second Circuit has held that a prisoner's claim that he was subjected to an unreasonably
intrusive strip or cavity search for purposes of the prison official's sexual gratification may constitute
a cognizable § 1983 claim. 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”). See also

3

Pursuant to this provision, a strip-search of an inmate must be conducted "upon initial
placement in a specialized housing unit, to include ... administrative segregation ... [and] restrictive
housing." Admin. Directive 6.7(5)(A)(6)(a) and (h).
22

Bell v. Wolfish, 441 U.S. 520, 560 (1979) (body cavity searches of inmates must be reasonable in
scope). Here, Abrams does not allege that the search was conducted for sexual gratification or some
other harmful purpose. Therefore, his Eighth Amendment claim for an overly intrusive strip search
will also be DISMISSED.
G.

Due Process Claim
Abrams alleges that Investigator Kelly and Officer Waters failed to properly investigate and

document the events of Brown's assault on Abrams on August 4, 2017. Doc. 1, ¶¶ 73-74. He alleges
that such failure constituted a denial of due process under the Fifth Amendment because it resulted
in his placement in segregation for twenty days. Id., ¶¶ 69-79, 83-84, 101-02.
The Fifth Amendment applies to the federal government, but not to the states. See Dusenbery
v. United States, 534 U.S. 161, 167 (2002) ("The Due Process Clause of the Fifth Amendment
prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the
States, from depriving any person of property without 'due process of law.'"); Ambrose v. City of New
York, 623 F. Supp. 2d 454, 466 (S.D.N.Y. 2009)(("[I]it is clear that Plaintiff fails to state any claim
under the Fifth Amendment;" and accordingly, "any due process claim he has against the City is
properly brought under the Due Process Clause of the Fourteenth Amendment, not under that of the
Fifth Amendment."). Because Plaintiff's lawsuit does not allege any deprivation of his rights by the
federal government, Abrams has failed to state a claim under the Fifth Amendment. Thus, his Fifth
Amendment claims must be DISMISSED.
To the extent Abrams is attempting to allege a due process claim under the Fourteenth
Amendment against Kelly and Waters, he must show that he was subject to an "atypical and
significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515
23

U.S. 472, 484 (1995). In Sandin v. Conner, the Supreme Court expressly held that a state prisoner
who is subjected to disciplinary punishment that is within the prisoner's expected condition of
confinement cannot establish deprivation of a protected liberty interest. Only disciplinary actions
which impose an "atypical and significant hardship in relation to the ordinary incidents of prison life"
may constitute a constitutional deprivation. Id. at 484.
In Sandin, the prisoner brought a § 1983 action against several prison officials alleging that
they had violated his constitutional right to procedural due process by sentencing him to disciplinary
segregation without permitting him to call certain witnesses. Id. at 476. The Supreme Court rejected
the contention that any action taken by correctional officials as a punitive measure necessarily
encroaches upon a liberty interest protected under the Due Process Clause. Id. at 484. Moreover, as
to time limits for disciplinary confinement, the Supreme Court held that a prisoner who was
subjected to a disciplinary term of thirty days of confinement in restrictive housing did not sustain
a deprivation of a liberty interest in violation of the Fourteenth Amendment's Due Process Clause.
Id. Given the prisoner's indeterminate sentence of 30 years to life, his confinement in disciplinary
segregation for 30 days "did not exceed similar, but totally discretionary confinement in either
duration or degree of restriction." Id. at 486. The Supreme Court concluded that such confinement
did not constitute an "atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life" inasmuch as "[t]he regime to which [the prisoner] was subjected . . . was
within the range of confinement to be normally expected for one serving an indeterminate term of
30 years to life." Id. at 484, 486-87.
In the case at bar, Abrams's twenty-day confinement in segregation, falling well short of thirty
days, does not, in and of itself, constitute a sufficient deprivation of liberty subject to due process
24

protection. This twenty-day restriction imposes no "atypical and significant hardship" in relation to
the fifty-one (51) year term of imprisonment to which Abrams was sentenced for attempted murder,
assault, and criminal possession of a firearm under Conn. Gen. Stat. §§ 53a-49, 53a-54a(a), 53a59(a)(1), 53a-217. See State v. Abrams, No. DBDCR00110691, 2013 WL 6038339, at *1 (Conn.
Super. Ct. Oct. 24, 2013) (discussing conviction at docket no. CR00–110691).
Moreover, Plaintiff admits in his complaint that the disciplinary ticket against him was
ultimately dismissed. With respect to an inmate being charged with an offense that would deprive
him of good-time credit, it is well settled that the inmate is entitled only to the minimum procedures
appropriate to insure that his due process rights are not arbitrarily abrogated. Wolff v. McDonnell,
418 U.S. 539, 558 (1974). In general, in this context, "some kind of hearing is required." Id. at 557.
In the case at bar, Plaintiff received a disciplinary hearing; and on August 22, 2017, Hearing
Officer King decided to dismiss the charge against Abrams based on the evidence. King "ruled that
due to the manner [in which] the [disciplinary] ticket was written, . . . inmate Brown pleading guilty
to the assault ticket and having no injuries, . . . the injuries Plaintiff sustained, . . . the incident
occurring in the cell without any video footage, and . . . no one refuting the Plaintiff's explanation
that he did not fight back, she decided to dismiss the Plaintiff's ticket for fighting." Doc. 1, ¶ 47. On
the facts pled, Abrams received the minimum procedures appropriate to insure that his due process
rights were not violated. At the conclusion of an evidentiary hearing, his ticket was dismissed.
Absent facts to support an alleged deprivation of due process, Abrams has failed to state

25

plausible due process claim against Kelly or Waters. If construed as claims arising under the
Fourteenth Amendment, his due process claims must be DISMISSED.4
H.

State Law Claims
In addition to his federal claims, Abrams has raised the following state law claims against

the defendants remaining in the action:

•

assault, battery, negligence, and intentional infliction of
emotional distress against Phillips for using excessive force
against Plaintiff during the incident with Brown on August 4,
2017;

•

negligence against Waters for failure to adequately document
and report the events of Brown's assault on Plaintiff on
August 4, 2017;

•

negligence against Nunez for failure to prevent Brown's
assault on Plaintiff (i.e., for pairing Plaintiff with this "high
security risk" prisoner);

•

negligence and intentional infliction of emotional distress
against Watson for failure to address and abate the mold in
Abrams's cell vent in segregation; and negligence against
Watson for failure "to correct an unconstitutional policy" of
intrusive strip search; and

•

and negligence against Kelly for failure to properly
investigate the assault by Brown on Plaintiff on August 4,
2017.

Doc. 1, ¶¶ 95-109.
4

To the extent that Plaintiff suggests he was mistreated because he is black, his conclusory
allegations fail to state a claim. For example, Plaintiff states that "Kelly is white" and Phillips is "a
white officer." Doc. 1, ¶ 76. Abrams alleges no facts to establish that any defendant was racially
motivated to harm him. He simply says that "two Hispanic inmates were released from segregation
after only 4 days" after they were involved in attacking "a black inmate who managed to get the best
of them." Such allegations are insufficient to establish a racial motive for any action taken by
defendants toward him.
26

The Court may exercise supplemental jurisdiction over state law claims pursuant to 28
U.S.C. § 1367(a), which provides in pertinent:
[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.
"The concept of supplemental jurisdiction, first codified in 28 U.S.C. § 1367 in 1990, has its
origins in the judicial doctrine of pendent jurisdiction, discussed by the United States Supreme Court
in United Mine Workers v. Gibbs, 383 U.S. 715, 725–29 (1966)." Valencia ex rel. Franco v. Lee,
316 F3d 299, 305 (2d Cir. 2003) (lateral citations omitted). Under Gibbs, "a federal court has
jurisdiction over an entire action, including state-law claims, whenever the federal-law claims and
state-law claims in the case 'derive from a common nucleus of operative fact' and are 'such that [a
plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'" 316 F.3d at 305
(citing and quoting Gibbs, 383 U.S. at 725). District courts apply the "common nucleus of operative
fact" test to determine whether supplemental jurisdiction exists in a given case. See, e.g., Morris v.
Yale Univ. Sch. of Med., No. 05CV848 (JBA), 2006 WL 908155. at *3 (D.Conn. April 4, 2006).
Moreover, the Second Circuit stated of the Article III constitutional concept: "A state law
claim forms part of the same controversy if it and the federal claim derive from a common nucleus
of operative fact. This is so even if the state law claim is asserted against a party different from the
one named in the federal claim." Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 308
(2d Cir. 2004) (citations and internal quotation marks omitted).
As discussed supra, the only plausible constitutional claims set forth in Plaintiff's Complaint
include: Plaintiff's Eighth Amendment "excessive force" claim against Phillips; Plaintiff's Eighth

27

Amendment "failure to protect claim" against defendant Nunez; and Plaintiff's Eighth Amendment
"hazardous conditions of confinement" claim against Watson for deliberate indifference to black
mold on the vent in his segregation cell.
In the case at bar, all of the state law negligence claims against the defendants are barred by
Conn. Gen. Stat. § 4-165. These claims are brought against state prison officials for their allegedly
negligent actions and/or inactions taken within the scope of their employment. Under Connecticut
law, "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). Therefore, if a corrections officer or prison official acts negligently, as opposed to
wantonly or recklessly, in the scope of his employment, Conn. Gen. Stat. § 4-165(a) bars recovery
on a negligence claim.
Under Conn. Gen. Stat. § 4-165(a), "No state officer or employee shall be personally liable
for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties
or within the scope of his or her employment." See, e.g., Hamilton v. Lajoie, 660 F. Supp. 2d 261,
266 (D. Conn. 2009) (in action where correctional officers engaged in altercation with inmate,
resulting in inmate's head trauma, abrasions to ear and shoulder, and post-traumatic stress, court held
that if defendant correction officers "acted wantonly, that will support [plaintiff's] claim . . . that
they violated his constitutional rights;" but if they "acted negligently, . . . § 4-165(a) bars recovery");
Schofield v. Magrey, No. 3:12CV544 JBA, 2015 WL 521418, at *13 (D. Conn. Feb. 9, 2015) ("To
the extent that Plaintiff asserts claims against the individual [police officer] defendants in their
personal capacities, rather than the Towns, Conn. Gen.Stat. § 4-165 applies" so "Plaintiff's
negligence-based claims against Defendants . . . must be dismissed."); Ziemba v. Lajoie, No.
28

3:11CV845 (SRU), 2012 WL 4372245, at *5 (D. Conn. Sept. 24, 2012)(dismissing negligence
claims against correctional officers under Conn. Gen.Stat. § 4–165 because 'state employees may not
be held personally liable for their negligent actions performed within the scope of their
employment'") (quoting Hamilton, 660 F.Supp. at 265).
Accordingly, pursuant to Conn. Gen. Stat. § 4-165(a), Plaintiff's negligence claims against
Phillips (for use of excessive force), Waters (for failure to adequately report Brown's assault on
Plaintiff), Nunez (for failure to protect Plaintiff from a "high security risk" cellmate); Watson (for
failure to abate the black mold in Plaintiff's segregation cell and or failure to correct the
"unconstitutional policy" of strip search), and Kelly (for failure to properly investigate Brown's
assault on Plaintiff on August 4, 2017) are all DISMISSED.
In contrast, "[s]tate employees do not . . . have statutory immunity for wanton, reckless or
malicious actions, or for actions not performed within the scope of their employment." Miller, 265
Conn. at 319. "For those actions, they may be held personally liable, and a plaintiff who has been
injured by such actions is free to bring an action against the individual employee." Id.
The Court thus turns to examine Plaintiff's state law claims for the intentional torts of
assault, battery, and intentional infliction of emotional distress. With respect to these tort actions
against Phillips for excessive use of force, such claims arise under the same set of facts as those
which give rise to Plaintiff's Eighth Amendment "excessive force" claim. The Court thus has
supplemental jurisdiction over this claim, which derives from a common nucleus of operative fact
with a federal claim.
The Court examines the prima facie elements of assault, battery, and intentional infliction
of emotional distress to determine whether Plaintiff has stated any plausible tort claim against
29

Phillips. Under Connecticut law, "[a] civil assault is defined as 'the intentional causing of imminent
apprehension of harmful or offensive contact with another.'" Germano v. Dzurenda, 09 Civ. 1316
(SRU), 2011 WL 1214435, at *22 (D. Conn. Mar. 28, 2011) (quoting Dewitt v. John Hancock
Mutual Life Ins. Co., 5 Conn. App. 590, 594 (1985)). Plaintiff has alleged that Phillips entered
Abrams's cell and sprayed him with mace. Doc. 1, ¶ 50. Then, while Abrams "was bent over to
cover his eyes while gasping for air," Phillips picked Abrams up and slammed him face-first to the
floor. Id., ¶ 51. As a result of being thrown, Plaintiff received a "hairline fracture to his nose." Id.,
¶¶ 37, 55-56. Under these circumstances, Plaintiff has stated a claim for assault by alleging that
Phillips intentionally caused imminent apprehension of harmful or offensive contact with him.
During the spraying of mace and while being slammed face-first to the ground, Plaintiff plausibly
experienced apprehension of harmful or offensive contact with Phillips.
With respect to battery, the Connecticut Supreme Court has held that "an actor is subject to
liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a
harmful contact with the person of the other directly or indirectly results." Germano, 2011 WL
1214435, at *22 (quoting Alteiri v. Colasso, 168 Conn. 329, 334 n.3 (1975)). Plaintiff has alleged
the elements of a battery claim in that, in addition to the elements for assault, Plaintiff has alleged
actual harmful contact with Phillips when Phillips sprayed mace in Plaintiff's eyes and physically
lifted and slammed him to the floor.
In order to assert a claim for intentional infliction of emotional distress, a plaintiff must
establish four elements: "(1) that the actor intended to inflict emotional distress; or that he knew or
should have known that the emotional distress was a likely result of his conduct; (2) that the conduct
30

was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress;
and (4) that the distress suffered by the plaintiff was severe." Miner v. Town of Cheshire, 126 F.
Supp. 2d 184, 194 (D. Conn. 2000) (quoting Petyan v. Ellis, 200 Conn. 243, 253 (1986); see also
Cavuoto v. Oxford Health Plans, Inc., No. 3:99-CV-00446 (EBB), 2000 WL 888263 at *8 (D.Conn.
June 22, 2000); DeLaurentis v. New Haven, 220 Conn. 225, 266-67 (1991). To be held liable for
intentional infliction of emotional distress, one's conduct must be "so extreme and outrageous that
it goes beyond all possible bounds of decency, is regarded as atrocious, is utterly intolerable in a
civilized society, and is of a nature that is especially calculated to cause, and does cause, mental
distress of a very serious kind." Miller, 126 F. Supp. 2d at 194.
Given the inherently stressful nature of being maced and then slammed to the floor face first,
the Court construes the facts liberally to find that Plaintiff has stated a plausible claim for intentional
infliction of emotional distress against Phillips for his violent conduct on August 4, 2017. Absent
an ongoing violent interchange between prisoners, it is "extreme and outrageous" to willfully bodyslam an inmate face-first to the floor, exerting enough force to fracture his nose. Such action goes
beyond the bounds of decency and civilized behavior.5 At the screening stage, the Court interprets
the facts to state the strongest argument that they suggest. Accordingly, the case may proceed as to
Plaintiff's intentional infliction of emotional distress claim against Phillips.
The Court next assesses Plaintiff's intentional infliction of emotional distress claim against
Watson with respect to the allegedly hazardous condition of black mold on the vent in his
segregation cell. This claim arises under the same case and controversy as the Eighth Amendment
5

"Whether conduct may be 'reasonably regarded' as extreme and outrageous is a question,
in the first instance, for the court." Huff v. W. Haven Bd. of Educ., 10 F. Supp. 2d 117, 122–23 (D.
Conn. 1998) (citing Kintner v. Nidec–Torin Corp., 662 F.Supp. 112, 114 (D.Conn.1987)).
31

hazardous "conditions of confinement" claim against Watson, affording the Court supplemental
jurisdiction over it. However, this state tort claim fails to state a plausible claim.
Even if the Court were to liberally construe Plaintiff's allegations to find that Watson
intended to inflict emotional distress upon him (by ignoring the black mold) and that Plaintiff was
consequently severely stressed, the Court does not find that Watson's actions were "extreme and
outrageous," as those terms are interpreted at common law. The standard in Connecticut to
demonstrate extreme and outrageous conduct is "stringent." Huff v. W. Haven Bd. of Educ., 10 F.
Supp. 2d 117, 122 (D. Conn. 1998). "[E]xtreme and outrageous" conduct is defined as that which
"exceed[s] 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).
Whether conduct may be "reasonably regarded" as extreme and outrageous is a determination
for the court. Kintner v. Nidec–Torin Corp., 662 F.Supp. 112, 114 (D.Conn.1987). Moreover,
"[m]ere conclusory allegations are insufficient as a matter of law to support a cause of action for
intentional infliction of emotional distress." Huff, 10 F. Supp. 2d at 122 (citing Ruffolo v.
Oppenheimer & Company, Inc., No. 90 Civ. 4593, 1991 WL 17857, at *2 (S.D.N.Y. Feb.5, 1991),
aff'd, 949 F.2d 33 (2d Cir.1991)).
Here, Plaintiff merely alleges that "Watson didn't take the Plaintiff's claims [about the mold]
seriously" and told him to "stay out of seg[regation]" to avoid the mold. Doc. 1, ¶ 68. Granted,
Watson's ignoring or refusing to abate an alleged unhealthy condition like mold may stem from
callousness, or even ignorance of the severity of the problem, but it does not seem "especially
calculated to cause . . . [serious] mental distress;" nor does it rise to the level of "extreme and
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outrageous" behavior, exceeding "all bounds usually tolerated by decent society." DeLaurentis, 220
Conn. at 267.
Failure to act is not affirmative misconduct. Connecticut courts have held that a failure to
act does not rise to the level of "extreme and outrageous behavior." See, e.g., Germano v. Dzurenda,
No. 3:09CV1316 SRU, 2011 WL 1214435, at *21 (D. Conn. Mar. 28, 2011) (dismissing prisoner's
claim for intentional infliction of emotional distress for failure to state a claim where"there has been
no allegation of affirmative misbehavior" by his defendant psychiatrists, only allegations that they
"failed to take seriously [plaintiff prisoner's] threats of suicide"); Giard v. Town of Putnam, No.
CV085002754S, 2008 WL 5481273, at *11 (Conn. Super. Ct. Dec. 3, 2008) (holding defendant
school guidance counselor's conduct "could not, as a matter of law, be extreme and outrageous"
because "[t]he alleged misconduct is the mere failure to act on unspecified information that the
decedent was suicidal"). Accordingly, absent allegations of affirmative misconduct which is
"extreme and outrageous," Plaintiff has failed to state a claim for intentional infliction of emotional
distress against Watson. That claim must be DISMISSED.6
In sum, the Court will only permit the following state law claims to proceed: assault, battery,
and intentional infliction of emotional distress against Phillips, which are factually related to
Plaintiff's Eighth Amendment excessive force claim. All other state law claims are DISMISSED.

6

The Court also notes that Plaintiff failed to allege severe emotional distress, which has been
held to be a basis for dismissal of a claim for intentional infliction of emotional distress. See, e.g.,
Germano v. Dzurenda, No. 3:09CV1316 SRU, 2011 WL 1214435, at *20 (D. Conn. Mar. 28, 2011)
(dismissing claims for intentional infliction of emotional distress against prison doctor where "[t]he
plaintiff [inmate] also has failed sufficiently to allege that the emotional distress the lack of a
medical mattress caused him was severe").

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I.

Request for Declaratory Relief
In addition to damages, Abrams seeks declaratory judgments against all defendants for their

alleged constitutional violations. Doc. 1, ¶¶ 24-26. Declaratory relief operates prospectively "to
enable parties to adjudicate disputes before either side suffers great damage." 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 this action, the claims that this Court has deemed plausible and will allow to proceed
concern past problems during incarceration at Cheshire C.I., a facility where Plaintiff was previously
housed. These claims include no alleged ongoing or future suffering at Corrigan. In sum, Abrams
has not identified any prospective legal relationships or issues that require resolution via declaratory
relief. All claims for declaratory relief must be DISMISSED.
IV. CONCLUSION AND ORDERS
(1) All claims against defendants Erfe, Doe, Ramirez, Waters, and Kelly are hereby
DISMISSED.
(2)

Plaintiff may proceed with the following federal claims in this action: Eighth

Amendment claim for "excessive force" against Phillips, Eighth Amendment claim for "failure to
protect" from harm against Nunez, and Eighth Amendment hazardous "conditions of confinement"

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claim against Watson. Each federal claim is permitted against the defendant solely in his individual
capacity for money damages.
(4) Abrams's state law claims of assault, battery, and intentional infliction of emotional
distress may proceed against Phillips in his individual capacity for damages. All other state law
claims are DISMISSED.
(5)

Abrams's requests for declaratory relief are DISMISSED.

(6) The Clerk shall verify the current work addresses for defendants Phillips, Nunez, and
Watson with the Department of Correction Office of Legal Affairs, mail a waiver of service of
process request packet containing the Complaint to each defendant at the confirmed address within
twenty-one (21) days of this Order, and report to the Court on the status of the waiver request on
the thirty-fifth (35) day after mailing. If any defendant fails to return the waiver request, the Clerk
shall make arrangements for in-person service by the U.S. Marshals Service on him, and the
defendant shall be required to pay the costs of such service in accordance with Fed. R. Civ. P. 4(d).
(7) Phillips, Nunez, and Watson shall file their response to the Complaint, either an answer
or motion to dismiss, within sixty (60) days from the date the notice of lawsuit and waiver of service
of summons forms are mailed to them. If they choose to file an answer, they shall admit or deny the
allegations and respond to the cognizable claims recited above. They may also include any and all
additional defenses permitted by the Federal Rules.
(8) Discovery, pursuant to Federal Rules of Civil Procedure 26 to 37, shall be completed
within six months (180 days) from the date of this Order. Discovery requests need not be filed with
the court.

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(9) All motions for summary judgment shall be filed within seven months (210 days) from
the date of this order.
The foregoing is SO ORDERED.
Signed: New Haven, Connecticut
February 2, 2018

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

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