Henderson v. Tuttle et al

Filing 40

ORDER denying 31 Motion for Contempt; denying 34 Motion for Conference; granting 35 Motion for Extension of Time to Complete Discovery; denying 36 Motion for Conference; granting nunc pro tunc 37 Motion for Extension of Time to Respond to Admissions; denying 38 Motion for Conference; denying 17 Motion to Amend/Correct; denying 21 Motion for Prejudgment Disclosure of Assets; denying 22 Motion for Prejudgment Remedy; denying 24 Motion for Contempt. Signed by Judge Stefan R Underhill on 5/10/19. (Kaas, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARK A. HENDERSON,
Plaintiff,
v.
LIEUTENANT TUTTLE, et al.,
Defendants.

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Case No. 3:18-cv-298 (SRU)

RULING ON PENDING MOTIONS
On May 11, 2018, the plaintiff, Mark A. Henderson, an inmate currently confined at the
MacDougall-Walker Correctional Institution in Suffield, Connecticut, filed an amended civil
rights complaint pro se under 42 U.S.C. § 1983 against five Connecticut Department of
Correction (“DOC”) officials claiming violations of his Eighth Amendment protection against
cruel and unusual punishment. Am. Compl., Doc. No. 13. I permitted his Eighth Amendment
claims for excessive force and inhumane conditions of confinement to proceed against three of
the defendants in their individual capacities for damages: Lieutenant Tuttle, Lieutenant
Blackstock, and Warden Faneuff. Initial Review Order, Doc. No. 14, at 10. The defendants
answered the amended complaint on January 4, 2019. Answer, Doc. No. 27. The following
motions are pending in this action:
Henderson’s Motion to File Second Amended Complaint, Doc. No. 17
Henderson’s Motion for Prejudgment Disclosure of Assets, Doc. No. 21
Henderson’s Motion for Prejudgment Remedy, Doc. No. 22
Henderson’s Motions for Contempt, Doc. Nos. 24, 31
Henderson’s Motions for Telephonic Status Conference, Doc. Nos. 34, 36, 38
Henderson’s Motion for Extension of Time to Complete Discovery, Doc. No. 35
Defendants’ Motion for Extension of Time to Complete Discovery, Doc. No. 37
I. Motion to Amend Complaint (Doc. No. 17)
A plaintiff may amend his complaint once as a matter of right within twenty-one days
after service of the complaint or, if a responsive pleading is required, within twenty-one days

after service of the responsive pleading. See Fed. R. Civ. P. 15(a). In all other cases, the
plaintiff may amend his complaint only with the Court’s leave. Fed. R. Civ. P. 15(a)(2). Rule
15(a)(2) of the Federal Rules of Civil Procedure requires that permission to amend a complaint
“shall be freely given when justice so requires.” “In the absence of any apparent or declared
reason – such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of the allowance of the amendment, futility of the amendment, etc. – the leave
should, as the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962). “This
relaxed standard applies with particular force to pro se litigants.” Pangburn v. Culbertson, 200
F.3d 65, 70 (2d Cir. 1999) (internal quotations omitted).
Henderson has already amended his complaint, and thus, seeks leave to file a second
amended complaint in what appears to be an attempt to cure the deficiency of his claim for
injunctive relief. He sought an injunction ordering the defendants to provide him with
orthopedic examination and treatment for an injury to his right leg, which he allegedly suffered
from the defendants’ action of placing him in in-cell restraints. See Am. Compl., Doc. No. 13 at
14. I dismissed the claim for injunctive relief because (1) Henderson had been transferred out of
the facility where the alleged Eighth Amendment violations occurred, and (2) he failed to allege
any facts showing that he informed the defendants about his leg injury. Initial Review Order,
Doc. No. 14 at 6. Although he alleges additional facts regarding his leg injury in the proposed
second amended complaint, Henderson has not cured either of those factual deficiencies. There
are no allegations that defendants Tuttle, Blackstock, and Faneuff ever became aware of
Henderson’s leg injury. The Eighth Amendment claims against them are grounded in their use
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of pepper spray without justification and their decision to place him in a restrictive confinement
cell with extremely unsanitary conditions. See id. at 7-9. Thus, because Henderson has failed to
cure the factual deficiencies of his claim for injunctive relief, his motion to file a second
amended complaint (doc. no. 17) is DENIED. The case will proceed on the amended complaint,
Doc. No. 13.
II. Motions for Prejudgment Disclosure of Assets and Remedy (Doc. Nos. 21, 22)
Before the defendants answered the amended complaint, Henderson filed a motion for
prejudgment disclosure of the defendants’ assets and a prejudgment remedy in the amount of
$9,000. Mot. Prej. Discl., Doc. No. 21; Mot. Prej. Remedy, Doc. No. 22. He argues that “there
is probable cause that a judgment will be rendered . . . in [his] favor” and requests a hearing to
determine whether such probable cause exists. Mot. for Prej. Discl., Doc. No. 21 at 1. The
defendants filed objections to both motions, contending that the State of Connecticut has
indemnified them pursuant to Connecticut General Statutes § 5-141d, and therefore, the
disclosure of assets and issuance of any prejudgment remedy are unwarranted. Obj. to Mot. for
Prejudgment Disclosure of Property and Assets, Doc. No. 29; Obj. to Appl. for Prejudgment
Remedy, Doc. No. 30.
Although the defendants are correct that the state has indemnified them and that any
money damages will be paid by the state, neither party has fully addressed whether good cause
warrants prejudgment disclosure, attachment, and/or monetary damages. “[A] prejudgment
remedy is ‘intended to secure the satisfaction of a judgment should the plaintiff prevail.’”
Roberts v. TriPlanet Partners, LLC, 950 F. Supp. 2d 418, 420 (D. Conn. 2013) (quoting Cendant
Corp. v. Shelton, 2007 WL 1245310, at *2 (D. Conn. Apr. 30, 2007)). Federal Rule of Civil
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Procedure 64 authorizes a plaintiff to use the state prejudgment remedies available to him to
secure a judgment. Id. Pursuant to Connecticut General Statutes § 52-278d(a), a prejudgment
remedy is appropriate:
[i]f the court, upon consideration of the facts before it and taking into account any
defenses, counterclaims or set-offs, claims of exemption and claims of adequate
insurance, finds that the [movant] has shown probable cause that such a judgment
will be rendered in the matter in the [movant's] favor in the amount of the
prejudgment remedy sought. . . .
Probable cause is a “bona fide belief in the existence of the facts essential under the law for the
action and such as would warrant a man of ordinary caution, prudence and judgment, under the
circumstances, in entertaining it.” Roberts, 950 F. Supp. at 421 (quoting Walpole Woodworkers,
Inc. v. Atlas Fencing, Inc., 218 F. Supp. 2d 247, 249 (D. Conn. 2002)). At this stage of the
litigation, Henderson has not shown probable cause that a judgment will likely be rendered in his
favor. He has not even explained how he arrived at a claim for damages in the amount of
$9,000. Therefore, the motions for prejudgment disclosure and prejudgment remedy (doc. nos.
21, 22) are DENIED.
III. Motions for Contempt (Doc. Nos. 24, 31)
Although labeled as a “Motion for Contempt,” Henderson’s first motion (doc. no. 24)
seeks an order compelling the defendants to respond to and produce certain requested discovery
materials, including requests for admissions, interrogatories, and other “exhibits.” Mot. for
Contempt, Doc. No. 24, 1-2. He claims that he has provided defense counsel with all those
requests, but the defendants have not responded. Id. at 2. The defendants object to the motion.
Obj. to Mot. for Contempt, Doc. No. 28. Henderson’s second motion for contempt (doc. no. 31)

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appears grounded in the defendants’ failure to respond to the motions for prejudgment disclosure
and remedy.
A motion for contempt is appropriate only when a party has disregarded an order of the
Court. Neither of Henderson’s motions involve a substantial failure to comply with a court
order. Accordingly, both motions (doc. nos. 24, 31) are DENIED.
IV. Motions for Status Conferences (Doc. Nos. 34, 36, 38)
Henderson has filed three motions seeking a status conference with the defendants. I do
not agree that a status conference is warranted at this time given that Henderson has filed a
motion seeking more time to complete his discovery. Therefore, the motions for a status
conference (doc. nos. 34, 36, 38) are DENIED.
V. Motions for Extension of Time to Complete Discovery (Doc. Nos. 35, 37)
Both parties have filed motions for extensions of time with respect to discovery.
Henderson seeks an additional 90 days to complete discovery. Mot. for Ext. of Time, Doc. No.
35. At the time the motion was filed (January 31, 2019), the discovery deadline, March 20,
2019, had not yet lapsed. It is not clear whether he is seeking an additional 90 days from the date
of his filing, or the date of the discovery deadline. Nevertheless, Henderson’s motion is
GRANTED and the discovery deadline is extended until July 17, 2019. Accordingly, the
dispositive motions deadline is extended until August 19, 2019.
The defendants’ motion for extension of time to respond to discovery (doc. no. 37) is
GRANTED nunc pro tunc.
ORDERS
(1)

The motion to amend the complaint (doc. no. 17) is DENIED. The case will
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proceed on the amended complaint, Doc. No. 13.
(2)

The motion for prejudgment asset disclosure (doc. no. 21) and motion for

prejudgment remedy (doc. no. 22) are DENIED.
(3)

Both motions for contempt (doc. nos. 24, 31) are DENIED.

(4)

The motions for status conferences (doc. Nos. 34, 36, 38) are DENIED.

(5)

The motions for extension of time to complete discovery (doc. Nos. 35, 37) are

GRANTED. Discovery must be completed no later than July 17, 2019. Dispositive motions
must be filed no later than August 19, 2019. No further extensions will be granted absent a
showing of good cause.
So ordered.
Dated at Bridgeport, Connecticut, this 10th day of May 2019.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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