Abrams v. Waters et al

Filing 24

RULING (see attached) granting Plaintiff's 18 Motion for Leave to File An Amended Complaint, pursuant to Rule 15(a), Fed. R. Civ. P., but striking certain specified claims from Plaintiff's 18 Amended Complaint for failing to state claims upon which relief may be granted, 28 U.S.C. § 1915A. (See contents of Ruling as to stricken claims.) Upon entry of this Ruling, the Clerk is directed to file Plaintiff's 18 Amended Complaint as a separate en try on the case docket. Defendants must thereafter answer or respond to the Amended Complaint (i.e., those claims the Court has ruled may proceed) on or before July 6, 2018. Signed by Judge Charles S. Haight, Jr. on June 8, 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,

JUNE 8, 2018

Defendants.

RULING ON MOTION TO AMEND COMPLAINT [DOC. 18]
Haight, Senior District Judge:
I. INTRODUCTION
On October 10, 2017, pro se plaintiff, David A. Abrams, an inmate currently incarcerated
at Corrigan-Radgowski Correctional Center ("Corrigan") in Uncasville, Connecticut, filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 against various prison officials employed at Cheshire
Correctional Institution ("Cheshire C.I."), where he was previously housed. These defendants
include: Corrections Officer Waters, Captain Nunez, Corrections Officer Phillips, Disciplinary
Report Investigator Kelly, Captain John Watson, Warden Scott Erfe, Maintenance Supervisor John
Doe, and Corrections Officer Ramirez. In his complaint, Plaintiff alleged, inter alia, violations of

1

his Fourth Amendment protection against unreasonable searches, his Eighth Amendment protection
against cruel and unusual punishment, and his Fourteenth Amendment right to due process. He also
brought various state tort laws.
On February 2, 2018, this Court issued its Initial Review Order ("IRO") permitting Abrams
to proceed with his Eighth Amendment claims of: (1) excessive force against Phillips, (2) "failure
to protect from harm" against Nunez, and (3) unlawful subjection to hazardous conditions of
confinement against Watson. Doc. 17 (IRO), at 34-35.1 The Court also permitted the state law
claims of assault, battery, and intentional infliction of emotional distress to proceed against Phillips
in his individual capacity for damages. Id., at 33, 35.
On the other hand, the Court dismissed all claims against defendants Erfe, Doe, and Ramirez
because there were no factual allegations that these defendants "were involved in, or even knew
about, the constitutional violations for which [Plaintiff] seeks to hold them liable." Id., at 11. The
Court also dismissed Plaintiff's Fourth and Eighth Amendment claims regarding the strip search he
underwent before his transfer to the segregation unit.2 Id., at 19-23. In addition, the Court dismissed
Plaintiff's Fourteenth Amendment due process claim against Kelly and Waters for failure to
investigate and document the events of August 4, 2017, the alleged assault by Plaintiff's cellmate,
Brown, upon Plaintiff. Id., pp. 23-25.
On February 23, 2018, Abrams filed the instant "Motion for Leave to File an Amended

1

This Initial Review Order [Doc. 17] appears as a slip opinion on Westlaw, cited as Abrams
v. Waters, No. 3:17-CV-1659 (CSH), 2018 WL 691717 (D. Conn. Feb. 2, 2018). When discussing
the IRO, the Court cites alternatively to Doc. 17 and 2018 WL 691717 herein.
2

Because Plaintiff failed to designate who performed or ordered the strip search and/or
whom his claim was against, the Court analyzed the Fourth and Eight Amendment claims generally
to determine whether they stated plausible claims for a constitutional violation. Doc. 17, at 19.
2

Complaint" with an attached proposed amended complaint. Doc. 18. Through this amended
complaint, Abrams seeks "to allege facts sufficient enough to develop plausible claims" and
"respectfully requests [that] this Court . . . reconsider claims [it] dismissed." Id., at 1. Plaintiff's
motion also seeks clarification on certain facts mentioned in the Court's IRO. Id., at 2. This Ruling
resolves the motion to amend and requests for clarification.
In general, a plaintiff may file an amended complaint as a matter of course within 21 days
after service of the complaint under Rule 15(a), Fed. R. Civ. P. As described supra, the Court filed
its IRO on February 2, 2018, directing the Clerk to serve the Complaint upon the remaining
defendants in the action. Plaintiff filed his request to amend on the twenty-first day thereafter and
thus well within 21 days after service. Under these circumstances, pursuant to Rule 15(a)(1)(A),
Plaintiff may amend his complaint "once as a matter of course." The Court will therefore accept
Plaintiff's amended complaint.
However, because the Court retains its duty to perform a sua sponte initial review of a
prisoner's claims against governmental entities or their officers under 28 U.S.C. § 1915A, the Court
must now review the amended complaint to determine whether any included claim is "frivolous,
malicious, or fails to state a claim upon which relief may be granted;" or "seeks monetary relief from
a defendant who is immune from such relief." See 28 U.S.C. § 1915A(b)(1)-(2). I n a d d i t i o n ,
because Plaintiff is a prisoner who is proceeding in forma pauperis, the Court must "dismiss the case
at any time if [it] determines that – . . . 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." 28 U.S.C.A. § 1915 (e)(2). Therefore, if any claim within the amended
complaint is frivolous, fails to state a plausible claim, or seeks recovery from an immune defendant,
3

that claim must be dismissed.
As set forth below, a review of the proposed amended complaint reveals that the claims
Plaintiff has attempted to reinstate and the newly added claim for First Amendment retaliation
against Erfe and Watson fail to state claims upon which relief may be granted.

See 28 U.S.C.

§§ 1915A(b)(1), 1915(e)(2); see also Kenyon v. Weber, No. 16-CV-6510-FPG, 2017 WL 6534049,
at *3 (W.D.N.Y. Dec. 21, 2017) (screening claim in amended complaint under §§ 1915A and
1915(e)(2), holding that "the Amended Complaint fails to state a plausible claim of deliberate
indifference to Plaintiff's leg injury and therefore this claim is dismissed with prejudice").
Accordingly, the amended complaint will be allowed to proceed only with respect to claims upon
which relief may be granted.
II. DISCUSSION
A.

Motion to Amend Complaint - Rule 15, Fed. R. Civ. P.
In response to the Court’s review of his claims in its IRO [Doc. 17], Abrams filed the present

motion to amend his complaint. See Doc. 18. In so doing, he requests the Court to reinstate his
Fourteenth Amendment due process claim regarding the investigation into the events of August 4,
2017 (when Abrams was allegedly assaulted by his cellmate Brown); his Fourth and Eighth
Amendment claims regarding the strip search conducted prior to his placement in segregation; and
his invasion of privacy claim regarding his legal mail. Id., ¶¶ 69-101, 112-18. Abrams also seeks
to raise a new claim of First Amendment retaliation against Erfe and Watson. Id., ¶¶ 102-11.
As described above, pursuant to Federal Rule of Civil Procedure 15, 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),
4

whichever is earlier. See Fed. R. Civ. P. 15(a)(1)(A) and (B). In all other cases, the plaintiff may
amend his complaint only with the Court’s leave. Fed. R. Civ. P. 15(a)(2). In the present case,
Abrams filed his motion for leave to amend and his amended complaint twenty-one days after the
Court issued its IRO, ordering service of the original complaint upon the defendants. Therefore,
Plaintiff may file an amended complaint once within that period as a matter of right under Rule
15(a)(1).
The Court will grant the motion to amend and accept the amended complaint. The only
remaining issue, therefore, is whether the Court should reinstate the claims it dismissed in its Initial
Review Order and/or allow Plaintiff's newly pled First Amendment retaliation claim to proceed
based on the allegations in the amended complaint.
B. Standard to Review Claims in Amended Complaint
In its IRO, the Court set forth the applicable standard of review for analyzing a pro se
prisoner's civil rights complaint. Specifically, under 28 U.S.C. § 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 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).3 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)).4 "A claim has facial plausibility when the plaintiff pleads factual content

3

See also 28 U.S.C. § 1915(e)(2) and Part I., supra.

4

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); Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 401 (2d Cir. 2015); New
5

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'
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
'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); Boykin v. KeyCorp., 521
F.3d 202, 214 (2d Cir. 2008) ("A document filed pro se is to be liberally construed and a pro se

Jersey Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119-20 (2d Cir.
2013).
6

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[].").
Although 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). 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.
C.

Plaintiff's Proposed Additional Claims
1.

Due Process

In his initial complaint, Abrams alleged that Kelly and Watson failed to properly investigate
the assault upon him on August 4, 2017, which resulted in his placement in the segregation unit at
Cheshire C. I. for twenty days. Doc. 1, ¶¶ 48, 73-74. The disciplinary report that was issued against
Abrams in connection with the assault was ultimately dismissed. Id., ¶ 47. In its IRO, the Court
found that Abrams's due process claim against Kelly and Watson failed to state a claim because
Plaintiff was unable to show that he was subject to an "atypical and significant hardship . . . in
relation to the ordinary incidents of prison life," as described in Sandin v. Conner, 515 U.S. 472,
7

484-87 (1995).
In Sandin, 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." 515 U.S. at 484. 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. In light of the prisoner's sentence of "an
indeterminate term of 30 years to life," the Supreme Court held that 30 days of segregation "was
within the range of confinement to be normally expected." Id. at 487. Therefore, that inmate's
confinement in disciplinary segregation for thirty (30) days did not constitute an "atypical and
significant hardship . . . in relation to the ordinary incidents of prison life." Id. at 484-85.
In its IRO, this Court held that Abrams, who is serving a fifty-one year term of imprisonment,
failed to state a plausible due process claim based on his twenty (20) days of confinement in
segregation. 2018 WL 691717, at *12. Such a period of segregation, given the length of his sentence
and terms of imprisonment, did not impose an atypical and significant hardship upon him.
Moreover, he received an evidentiary hearing, after which his disciplinary ticket was ultimately
dismissed. Accordingly, Plaintiff received at least "the minimum procedures appropriate to insure
that his due process rights [were] not arbitrarily abrogated." Id. (citing Wolff v. McDonnell, 418 U.
S. 529, 558 (1974)).
In his proposed amended complaint, Abrams fails to allege any additional facts to establish
that he was subjected to an "atypical and significant hardship" when confined in segregation for
twenty days. He alleges that he "feels discrimination played a key role" in Kelly's and Watson's
failure to investigate and document the assault and believes that Kelly was trying to "screw him
8

over." Doc. 18, ¶¶ 73, 77. These allegations are, however, insufficient to state a plausible due
process violation under the Fourteenth Amendment. Therefore, the Court will not reinstate the
Fourteenth Amendment claim against Kelly and/or Waters. That claim will be dismissed with
prejudice.
2.

Intrusive Strip Search – Fourth Amendment and Eighth Amendment Claims5

In his initial complaint, Abrams alleged that, before placing him in the segregation unit at
Cheshire, correction officials ordered him to undergo a strip search.6 Doc. 1, ¶ 40. After removing
his clothing, Abrams was ordered "to bend over at the waist [and] spread his butt cheeks for the
[corrections officer], which is the policy only at Cheshire . . ." Id. When Chauncey Moore, a
prisoner in a neighboring cell in the segregation unit, questioned Captain Watson about "this type
of intrusive strip search," Watson told him that it was "facility policy." Id., ¶ 82.
Relying on the United States Supreme Court's decision in Turner v. Safley, 482 U.S. 78, 107
(1987), the Court dismissed Abrams's Fourth Amendment challenge to the strip search because
Plaintiff failed to allege facts to show that the strip search was unreasonable or unrelated to a
penological interest, such as protecting staff and other inmates from the transportation of weapons
or contraband into the segregation unit. Abrams, 2018 WL 691717, at *10.

5

Plaintiff labels this claim "Sexual Harassment and Intrusive Strip Search." However, even
construing the amended complaint to state the strongest arguments it suggests, Plaintiff includes no
allegations of sexual harassment.
6

As the Court noted in its IRO, Plaintiff "fail[ed] 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." 2018 WL 691717, at *9. Plaintiff also "fail[ed] to designate who
performed or ordered the search and/or whom his claim is against." Id. The only defendant Plaintiff
named in regard to this claim was Captain Watson, who stated that the search was "facility policy."
Id.
9

In the case at bar, "a Connecticut Department of Corrections ("DOC") regulation requires a
strip search upon a prisoner's placement in specialized housing." Id. (citing State of Connecticut
Administrative Directive 6.7 ("Searches Conducted in Correctional Facilities"), at § 5(A)). That
regulation 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"
Id. (citing Holloway v. Dep't of Corr., No. 3:11-CV-1290 (VLB), 2013 WL 4834657, at *5 (D.
Conn. Sept. 10, 2013)). The Court thus dismissed the Fourth Amendment claim relating to an
"intrusive strip search" as failing to state a plausible claim.
In addition, the Court dismissed Plaintiff's Eighth Amendment claim regarding the strip
search because Plaintiff failed to allege that the search was conducted for sexual gratification or for
some other harmful purpose. 2018 WL 691717, at *11 (citing 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")).
In his amended complaint, Abrams now argues that the strip search policy at Cheshire is
unconstitutional because the manner in which it is conducted is "humiliat[ing]" and, if a prisoner
refuses to comply with the search, he is often placed in leg shackles until he complies and is
"checked on by medical personnel every 72 hours for proper blood flow [and] adjustment of the
shackles [and] chain." Doc. 18 ("Amended Complaint"), ¶¶ 92-96. Moreover, these restraints make
it "impossible" for the inmate to sleep or use the bathroom. Id., ¶ 97.
With respect to humiliation, a strip search necessarily incurs upon a prisoner's privacy
because it is "of an intensely personal nature." Crawford v. Cuomo, 796 F.3d 252, 258 (2d Cir.
2015). The body of the prisoner must be examined to determine whether weapons or contraband
10

are concealed. However, unless the search is conducted in an unreasonable manner, such as when
the officer conducting the search has an "intention of humiliating the inmate or deriving sexual
arousal or gratification from the contact," the search does not violate the inmate's constitutional
rights. Id. See also, e.g., Walker v. Ponte, No. 14 CIV. 8507 (ER), 2016 WL 4411415, at *4
(S.D.N.Y. Aug. 18, 2016)("[C]ourts have acknowledged the degree to which strip searches may
humiliate and 'invade the personal privacy of inmates,' and have nonetheless upheld the use of strip
searches where they further the legitimate interest of discovering contraband.") (citing Bell v.
Wolfish, 441 U.S. 520, 560 (1979); Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) ("There
is no question that strip searches may be unpleasant, humiliating and embarrassing to prisoners, but
not every psychological discomfort a prisoner endures amounts to a constitutional violation.").
Furthermore, as to alleged punishments imposed for failure to comply with a search,
Plaintiff's allegations fail to make the search itself unreasonable and/or to cure the factual
deficiencies of the initial complaint. Once again, Abrams has alleged no facts to show that strip
search upon transfer to a new unit is unrelated to legitimate penological and/or security objectives;
nor has he alleged that the search he underwent was conducted for a harmful purpose, such as malice
or sexual abuse.7 Accordingly, his Fourth and Eighth Amendment claims regarding the strip search
conducted at Cheshire continue to fail to state a claim. They will not be reinstated and will be
dismissed with prejudice.
3.

Retaliation

Abrams attempts to raise a new claim that Erfe and Watson transferred him from Cheshire

7

As noted in footnote 5, supra, Plaintiff has included "sexual harassment" in the title to this
intrusive strip search claim. However, he provides no factual allegations to support such a label.
11

to Corrigan in retaliation for grievances he filed and for the purpose of preventing his access to a
law library to litigate a civil suit. Doc. 18, ¶¶ 102-11. Plaintiff alleges the following facts in support
of this claim. On August 6, 2017, Abrams submitted a written inmate request to Warden Erfe,
notifying him that Abrams was assaulted by Phillips. Id., ¶ 102. Abrams received no response from
Erfe. Id. The next day, Abrams requested that Captain Nunez provide him with video surveillance
footage of the North 1 Unit. Id., ¶ 103. Plaintiff followed this request by bringing two grievances
"regarding claims in his complaint on August 21, 2017." Id., ¶ 105.
On August 23, 2017, Abrams was transferred from Cheshire to Corrigan. Id., ¶ 106. Plaintiff
alleges that Corrigan "is regarded as the worst Level 4 facility in the state due to the fact that there
is no access to a law library, the facility is constantly on lockdown status; there are no contact visits;
there are only 8 TV stations:" and the prison "seems to operate by a different set of mandated rules
than other facilities in the state." Id., ¶ 107. Because Erfe was formerly the warden at Corrigan, he
"knows how Corrigan is run." Id., ¶ 108.
Plaintiff alleges that "[a]s a result of all the paperwork [he] filed while in segregation [and]
the obvious filing of a civil suit which was imminent," Erfe and Watson transferred him to Corrigan
"as retaliation for the imminent exercise of his right of court access that would be drastically
hindered due to his not having access to a law library to properly prepare [and] litigate a civil suit."
Id., ¶ 109. Plaintiff further alleges that "[i]t is common knowledge throughout the prison system
that for the most part prisoners are transferred to Corrigan as some 'sort of punishment.'" Id., ¶ 110.
Abrams concludes that the decision of Erfe and Watson to transfer him to Corrigan was an act of
retaliation for his "imminent exercise of his right of access to the courts," in violation of his First,
Fifth, and Fourteenth Amendment rights. Id., ¶ 111.
12

A prisoner's claim that a prison official retaliated against his constitutionally protected speech
or expressive conduct is generally analyzed under the First Amendment. Construing Plaintiff's
allegations liberally, the Court will analyze Abrams' claim as a First Amendment challenge of
retaliation under 42 U.S.C. § 1983, which holds as liable any person who, under color of state law,
deprives another of his constitutional rights and privileges.
"Prison officials may not retaliate against inmates for exercising their constitutional rights."
Riddick v. Arnone, No. 11 Civ. 631 (SRU) 2012 WL 2716355 *6 (D. Conn. July 9, 2012) (citing
Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). "To prevail on a First Amendment
retaliation claim, [a prisoner] must establish (1) that the speech or conduct at issue was protected,
(2) that the [official] took adverse action against the [prisoner], and (3) that there was a causal
connection between the protected [conduct] and the adverse action." Holland v. Goord, 758 F.3d
215, 225 (2d Cir. 2014) (citation and internal quotation marks omitted). See also Espinal v. Goord,
558 F.3d 119, 128 (2d Cir. 2009)(same). Because "claims of retaliation are easily fabricated," courts
must consider them "with skepticism and require that they be supported by specific facts."8 Riddick,
2012 WL 2716355 *6. Conclusory statements will not suffice. See, e.g., Flaherty v. Coughlin, 713
F.2d 10, 13 (2d Cir. 2003). The prisoner bears the burden of showing that "the protected conduct
was a substantial and motivating factor in the prison officials' disciplinary decision." Holland, 758

8

As the Second Circuit stated in Davis v. Goord, 320 F.3d 346 (2d Cir. 2003):

Courts properly approach prisoner retaliation claims "with skepticism and particular
care," because "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."
320 F.3d at 352 (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)).
13

F.3d at 225 (internal quotation marks omitted).
The allegations set forth in Plaintiff's amended complaint fail to state a plausible retaliation
claim against Erfe or Watson. To the extent Plaintiff believes Erfe and Watson retaliated against him
because he made an inmate request, filed two grievances regarding the assault in his cell on August
4, 2017, and/or planned to file an "imminent civil suit," the filing of a prison grievance or lawsuit
may be considered constitutionally protected speech. However, no facts are alleged to demonstrate
a causal connection between said protected speech and the alleged adverse action of transferring
Plaintiff to a prison without library access. Moreover, no factual allegations show that Erfe or
Watson knew about Abrams's desire or attempt to access a law library, much less that the transfer
order was tailored to prevent such access. There is also no proof that Erfe and/or Watson ordered
the transfer for the purpose of attempting to prevent Plaintiff from bringing the present action.
In order to state a claim for First Amendment retaliation, the inmate bears the burden of
showing that "the protected conduct was a substantial or motivating factor" in the prison officials'
disciplinary decision. Holland, 758 F.3d at 225-26 (quoting Graham v. Henderson, 89 F.3d 75, 79
(2d Cir.1996)). Here, Plaintiff provides no facts to demonstrate a link between the transfer order and
Plaintiff's alleged protected speech. There are no factual allegations that either Erfe or Watson
considered library access, or knew of Plaintiff's desire to use a library, when making the transfer.
"[P]rison officials have broad discretion to transfer prisoners 'for any reason or no reason at
all,' but may not transfer solely in retaliation for exercise of First Amendment rights." Gonzalez v.
Narcato, 363 F. Supp. 2d 486, 496 (E.D.N.Y. 2005) (quoting Montanye v. Haymes, 427 U.S. 236,
243 (1976)). In the present case, there are no factual allegations to show that Plaintiff's transfer to
Corrigan was ordered in retaliation for his inquiries, grievances, or plans to bring a civil case. See,
14

e.g., Gonzalez , 363 F. Supp. 2d at 497 (granting summary judgment on retaliation claim because
Plaintiff offered solely "conclusory allegations" regarding the reason for his transfer : "Plaintiff fails
to demonstrate that his letter writing to outside officials was a substantial or motivating factor in
defendants' decision to transfer him"). Because he has only made "conclusory allegations" regarding
the reason for his transfer, Abrams's First Amendment retaliation claim is barred under 28 U.S.C.
§ 1915A(b)(1) for failing to state a claim.
4.

Invasion of Privacy of Legal Mail against Ramirez

In his Amended Complaint, Plaintiff once again attempts to state a claim for "invasion of
privacy" regarding his legal mail against "Mailroom Handler and Corrections Officer" Ramirez,
whom Plaintiff asserts is "responsible for opening and inspecting mail." Doc. 18, at ¶ 118. The
amended claim, however, stills fails to state a plausible claim because it fails to allege that Ramirez
opened or knew about the opening of Plaintiff's particular "legal mail." "[P]ersonal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (citing McKinnon v. Patterson, 568
F.2d 930, 934 (2d Cir. 1977)).9 See also, e.g., Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)
9

In Williams v. Smith, the Second Circuit provided a list of the several ways a defendant may
be personally involved in a constitutional deprivation within the meaning of 42 U.S.C. § 1983:
The defendant may have directly participated in the infraction. A supervisory official,
after learning of the violation through a report or appeal, may have failed to remedy
the wrong. A supervisory official may be liable because he or she created a policy or
custom under which unconstitutional practices occurred, or allowed such a policy or
custom to continue. Lastly, a supervisory official may be personally liable if he or she
was grossly negligent in managing subordinates who caused the unlawful condition
or event.
781 F.2d at 323–24 (internal citations omitted). In the case at bar, there are no factual allegations
to suggest that Ramirez was personally involved through any of the listed means.
15

(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"); 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 a position
of authority was an insufficient basis for personal liability); Vega v. Artus, 610 F. Supp. 2d 185, 199
(N.D.N.Y. 2009) ("[A] Section 1983 plaintiff must allege a tangible connection between the acts of
the defendant and the injuries suffered.") (citations and internal quotation marks omitted).
As stated in the IRO, Plaintiff has brought this claim against Ramirez based merely on his
supervisory position in the mailroom at Cheshire C.I. There is no factual allegation that Ramirez
performed any particular action to violate Plaintiff's right to privacy, knew of the alleged violation,
implemented a set policy to invade "legal mail," and/or was grossly negligent in managing
subordinates in the mailroom. Plaintiff merely alleges that on August 16, 2017, he "sent out mail
to a Fairfield County Lawyer Referral Service" with "legal mail" printed on the envelope; Plaintiff
was transferred to Corrigan on August 23, 2017; the alleged "legal mail" he sent was returned to
Cheshire C.I., because the post office "was unable to forward [it] some time after [he] was
transferred;" and when Plaintiff received the "legal mail" at Corrigan on Sept. 13, 2017, it was
opened." Doc. 18-1, at 26 (¶¶ 112-117). Plaintiff makes the conclusory allegation that his "legal
mail" was "opened at [the] Cheshire facility out of the plaintiff's presence and forwarded to him."
Id., ¶ 117.
There are no factual allegations that Ramirez opened the "legal mail" to which Plaintiff refers
or how and when the letter was opened. Plaintiff merely alleges that the letter was "opened at
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Cheshire facility out of the plaintiff's presence and forwarded to him." Id. In the absence of facts
that show "personal involvement" by Ramirez, Plaintiff's allegations are insufficient to allege a
constitutional deprivation. Plaintiff's claim for invasion of privacy regarding his legal mail will be
dismissed with prejudice.
D.

Clarification of Facts
Finally, Abrams seeks to correct or clarify facts included in the Court's IRO. See Doc. 18,

at 2. First, he argues that the Court mistakenly stated that, "[a]s Correction Officers Johnson and
Phillips entered the cell, Abrams stumbled forward and collided with a chair" when, in his initial
complaint, he alleged that he "stumbled forward colliding into the chair kicking it out of his path.”
Id. (quoting Doc. 10, p. 5; citing Doc. 1 (Complaint), ¶ 24). The Court accepts Plaintiff's account
of his kicking the chair out of his path, but notes that such a correction has no impact on the Court's
holdings in the IRO or this Ruling. In particular, the Court has already allowed the excessive force
claim to proceed against Phillips, regardless of whether Plaintiff merely collided with a chair or
stumbled into it and kicked it out of his path.
Second, Plaintiff wishes the Court to note that, contrary to the Court's statement in the IRO
that inmate Carrilli assaulted him, Plaintiff merely asked Captain Nunez "that he not be paired up
with another 'high security prisoner' as a cellmate." Doc. 18, at 2-3 (citing Doc. 1, ¶ 58). In other
words, Plaintiff wishes the Court to acknowledge that Carrilli did not assault him. The Court accepts
Plaintiff's clarifications as additions to its IRO, but again notes that they do not alter the Court's
Rulings in the IRO or herein.10 The fact that "high security" inmate Carrilli was "not getting along"
10

The Court notes that, after filing his Complaint, Plaintiff alleged in his motion for
Preliminary Injunction that he has been attacked twice by inmates in the prison system and clarified
that the inmate other than Brown who allegedly assaulted him was Kareem Hedge. Doc. 6, ¶ 4.
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with Plaintiff, but never actually assaulted him, does not alter the Court's holding that Plaintiff's
Eighth Amendment claim against Nunez for failure to protect states a claim upon which relief may
be granted.
The Court accepts Plaintiff's proffered factual clarifications and leaves him to his proof
regarding all factual allegations in support of his claims.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff's "Motion for Leave to File An
Amended Complaint" [Doc. 18]. Pursuant to Federal Rule of Civil Procedure 15(a)(1), Plaintiff may
amend his pleading "once as a matter of course within: 21 days after serving it." However, to the
extent that Plaintiff has included claims in his amended complaint which were dismissed by the IRO
and an additional claim which fail to state viable claims, those claims are futile and must be stricken
pursuant to the Court's duty to screen said claims under 28 U.S.C. §§ 1915A and 1915(e)(2). The
stricken claims include: Abrams's previously dismissed claims (a due process claim against Kelly
and Watson for alleged failure to investigate the incident in Plaintiff's cell on August 4, 2017; Fourth
and Eighth Amendment claims related to an allegedly intrusive strip search conducted prior to
Plaintiff's placement in segregation; and a claim for invasion of privacy of legal mail against
Ramirez) and his newly added claim for First Amendment retaliation against Erfe and Watson. These
claims are now dismissed with prejudice.
Plaintiff's action may proceed only on the claims designated by the Court in its original IRO,

That assault occurred at MacDougall C.I. on April 11, 2011, so it preceded Plaintiff's confinement
in Cheshire and Corrigan. Id. With respect to inmate William Carrilli, Plaintiff alleges that Carrilli
did not assault him but rather "complained to Nunez that he and the plaintiff were not getting along"
so that "Nunez promptly moved the plaintiff to a different empty cell." Doc. 1, ¶ 56. According to
Plaintiff, Carrilli was a "high security" prisoner who was "well known for his racist views." Id., ¶ 57.
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which were also included in the Amended Complaint. These actions include: (1) the Eighth
Amendment excessive force claim against Phillips, (2) the Eighth Amendment failure to protect
claim against Nunez, (3) the Eighth Amendment hazardous conditions of confinement claim against
Watson, and (4) the state law claims for assault, battery, and intentional infliction of emotional
distress against Phillips.
The Court hereby accepts Plaintiff's proposed "Amended Complaint" (Doc. 18-1) with
respect to the designated claims permitted per this Ruling as the operative complaint. Upon entry
of this Ruling, the Clerk is directed to file Plaintiff's "Amended Complaint" [Doc. 18-1] as a separate
entry on the case docket. Defendants must thereafter answer or respond to that pleading on or
before July 6, 2018.
The foregoing is SO ORDERED.
Dated: New Haven, Connecticut
June 8, 2018
/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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