Shand v. Chapalaine et al

Filing 28

INITIAL REVIEW ORDER (see attached). For the reasons explained in the attached Order, Plaintiff's 26 Amended Complaint may proceed against Defendants Rivera, Michaud, White, Aubert, Bard, Chylinski, Vanostrand, Brysgel, DeJoinville, St. Clair, Irizarry, Skribiski, and Maiorana. Defendants must respond to the Amended Complaint, by either filing an answer or motion to dismiss, within sixty (60) days from the date the waiver forms are sent. All discovery in this matter must be comple ted within 210 days from the date of this Order, on or before May 12, 2021. All motions for summary judgment shall be filed within 240 days from the date of this order, on or before June 11, 2021. The Clerk shall send Plaintiff a copy of this Order. Signed by Judge Charles S. Haight, Jr. on October 14, 2020. (Marienko, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHRISTOPHER SHAND,
NO. 3:19-cv-755 (CSH)
Plaintiff,
v.
RIVERA, MICHAUD, WHITE, AUBERT,
BARD, CHYLINSKI, VANOSTRAND,
BRYSGEL, DEJOINVILLE, ST. CLAIR,
IRIZARRY, SKRIBISKI, MAIORANA,

OCTOBER 14, 2020

Defendants.

INITIAL REVIEW ORDER
HAIGHT, Senior District Judge:
Plaintiff Christopher Shand, currently incarcerated at Cheshire Correctional Institution in
Cheshire, Connecticut, has commenced this action pro se pursuant to 42 U.S.C. § 1983. On May
30, 2019, the Court issued an Initial Review Order [Doc. 6], dismissing some of Plaintiff’s claims
with prejudice1 and granting Plaintiff leave to file an amended complaint restating his Section 1983
claims against Defendants Rivera, Michaud, White, Aubert, Bard, Chylinski, Vanostrand, Brysgel,
DeJoinville, St. Clair, Irizarry, Skribiski, and Maiorana based on their failure to protect him from
violence. Familiarity with the May 30, 2019 Order and the factual background recounted therein is
assumed.

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The May 30, 2019 Order dismissed with prejudice all claims against defendants
Chapdelaine, Hines, Guadarrama, Mudano, Salius and Aldi, as well as Plaintiff's negligence claims
and request for declaratory relief.
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Plaintiff has filed an amended complaint. Doc. 26. This Ruling examines whether
Plaintiff’s amended complaint sufficiently alleges a claim under Section 1983.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915A, a district court must review prisoner civil complaints against
governmental actors 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).
A complaint is adequately pled if its allegations, accepted as true and liberally construed,
could “conceivably give rise to a viable claim.” See Green v. Martin, 224 F. Supp. 3d 154, 160 (D.
Conn. 2016) (citing Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005)). Although highly detailed
allegations are not required, the complaint must state a claim that is “plausible on its face.” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S
544, 570 (2007)); Allco Fin. Ltd. v. Klee, 861 F.3d 82, 94 (2d Cir. 2017). A complaint states a
claim that is plausible on its face “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. However, the Court is not bound to accept “conclusory allegations.” Faber v. Metro.
Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). Nor does a complaint suffice if it tenders “naked
assertions” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S at 557).
Pro se submissions “are reviewed with special solicitude, and ‘must be construed liberally
and interpreted to raise the strongest arguments that they suggest.’” Matheson v. Deutshe Bank
Nat’l Tr. Co., 706 F. App’x 24, 26 (2d Cir. 2017) (quoting Triestman v. Fed. Bureau of Prisons,
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470 F.3d 471, 474 (2d Cir. 2006)); see also Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008)
(“a pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers”).
This liberal approach, however, does not exempt pro se litigants from the minimal pleading
requirements described above: a pro se complaint must still “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).
FACTUAL ALLEGATIONS OF THE AMENDED COMPLAINT
The Amended Complaint alleges the following:
On May 16, 2016, Plaintiff Shand was transferred to MacDougall-Walker Correctional Institution
and taken to the Admitting and Processing (“A&P”) Room. Doc. 26 (Am. Compl.) ¶ 16. While in
the A&P Room, Shand told Defendants Officer Michaud and Lieutenant White that he did not feel safe
returning to the B-1 or B-2 housing units. Id. at ¶ 17. He told them that the Security Risk Group
(“SRG”) Bloods members “had put a hit out on his head” and would not stop until they got him. Id.
Shand also told the officers the aliases of persons who were continuously threatening him; he did not
know the actual names. Id. Despite this information, Shand was taken to the B-1 housing unit. Id.
at ¶ 18.
Upon arrival in the housing unit, Shand told the unit officers he felt suicidal. Id. at ¶ 19. The
officers called mental health staff and Shand was escorted to the restrictive housing unit (“RHU”)
where he was provided a Ferguson gown and placed under observation for several days. Id. at ¶ 20.
In RHU, Shand told Defendant Captain Rivera that his life was in danger because the Bloods were
“out to get him.” Id. When Shand asked Captain Rivera what could be done to ensure his safety and
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asked to be placed in protective custody, Captain Rivera just walked away. Id. at ¶ 21.
When Shand was cleared by mental health staff, he was returned to the B1 Housing Unit and
placed in a cell by himself. Id. at ¶ 22. Shand received threats and notes were slid under his cell door.
Id. at ¶ 23. He wrote to Captain Rivera, Counselors Skribiski and Maiorana, unit officers, custody
officers, and the warden and deputy warden daily, and spoke to them whenever they toured the housing
unit. Id. at ¶ 23.
On May 24, 2016, Shand learned that Captain Rivera had ordered him moved to a cell with a
cellmate. Id. at ¶ 24. Shand told Defendant Officer Aubert that he did not feel safe sharing a cell with
inmate Banks because inmate Banks was one of the inmates who had been sliding notes under his door
and threatening him. Id. Shand refused to move. Id. at ¶ 25. Officer Aubert told Shand that if he did
not move, he would receive a disciplinary report for refusing housing. Id. at ¶ 26. En route to the new
cell, Shand told Officer Aubert and his partner that he feared for his safety and asked to speak to
Captain Rivera. Id. at ¶ 27. Plaintiff was ignored. Id. at ¶ 28.
The following day, Shand asked Defendants Counselors Skribiski and Maiorana why he was
assigned a cell with inmate Banks when inmate Banks was one of the inmates threatening him. Id. at
¶ 29. Shand asked Defendants to stay close to his cell to prevent an assault or to move him to
protective custody. Id. at ¶ 30. Defendants told Shand to “Man up” and left the area. Id. at ¶ 31.
Defendant Correctional Officer Irizarry came to escort Shand to the shower. Id. at ¶ 32. On the way
to and from the shower, Shand told Officer Irrizary that he did not feel safe in his cell and was going
to be assaulted. Id. at ¶¶ 32-33. Shand also informed Defendants Officers Bard, Chylinski, Vanostrand,
Brysgel, DeJoinville, and St. Clair. Id. at ¶ 33. The officers ignored him. Id. at ¶ 34.
On May 25, 2016, Shand was assaulted in his cell by his cellmate, Henry Banks. Id. at ¶ 35.
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Inmate Banks was issued a disciplinary report for assault. Id. at ¶ 36. Shand suffered injuries to his
back, ear, eyes and face. Id. at ¶ 37.
DISCUSSION
Plaintiff alleges that Defendants were deliberately indifferent to his safety and failed to protect
him from harm in violation of the Eighth Amendment. To state such a claim, Plaintiff must “allege facts
showing that he was incarcerated under conditions posing a substantial risk of serious harm, and that
the defendants acted with deliberate indifference to that risk and [his] safety.”

Altayeb v.

Chapdelaine, No. 3:16-CV-00067 (CSH), 2016 WL 7331551, at *3 (D. Conn. Dec. 16, 2016) (internal
quotation marks and citation omitted); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Deliberate indifference exists when prison officials know of and disregard an excessive risk to inmate
safety. See Farmer, 511 U.S. at 834; Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (stating
that the charged official must be “actually aware of a substantial risk that serious inmate harm will
result”).
In assessing whether Plaintiff faced an excessive risk of serious harm, this Court must “look
at the ‘facts and circumstances of which the official was aware at the time he acted or failed to act.’”
Hartry v. City of Suffolk, 755 F. Supp. 2d 422, 436 (E.D.N.Y. 2010) (quoting Heisler v. Kralik, 981
F. Supp. 830, 836 (S.D.N.Y. 1997)). “While an actual physical attack is not required to demonstrate
a substantial risk of serious harm, mere fear of an assault is insufficient to state a claim for an Eighth
Amendment violation.” Smith v. Byrne, Civil Action No. 2:14 CV 20, 2015 WL 347394, at *6 (D. Vt.
Jan. 24, 2015) (citing cases). Thus, “a pleading which merely asserts an unsubstantiated fear of harm
fails to plead a ‘substantial risk of serious harm’” to support a failure to protect claim. Douglas v.
Annuci, No. 14-CV-6018 CJS, 2017 WL 5159194, at *6 (W.D.N.Y. Nov. 7, 2017).
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For example, in Douglas, the prisoner who alleged that there was an active gang contract on
his life and that he had been slashed by gang members on five previous occasions sufficiently stated
a failure to protect claim. 2017 WL 5159194, at *6. By contrast, in Fofana, the prisoner’s claims of
fear for his life unaccompanied by any allegations of threat, assault, injury were insufficient to support
a reasonable inference that prisoner was housed under conditions posing a substantial risk of serious
harm. Fofana v. Suffolk Cty. Corr. Fac., No. 13-CV-443(SJF)(ETB), 2013 WL 2285733, at *5
(E.D.N.Y. May 20, 2013).
In accordance with these principles, this Court’s May 30, 2019 Initial Review Order stated
that Plaintiff’s amended complaint should allege facts demonstrating that Plaintiff expressed
specific, rather than generalized, concerns regarding his safety to Defendants. See Doc. 6, at 8, 11.
The Amended complaint complies with this directive and cures the deficiencies of Plaintiff’s
original complaint. Plaintiff alleges that he voiced specific concerns regarding his safety to
Defendants who consciously disregarded Plaintiff’s pleas. For example, Plaintiff alleges that he
informed Defendants Michaud, White and Rivera that he did not feel safe in the B-1 or B-2 housing
units and that the SRG Bloods members “had put a hit out on his head” and would not stop until they
got him. Am. Compl. ¶ 17–18, 20–21. Despite providing information regarding the persons that
were threatening him, Plaintiff’s concerns were ignored by Defendants. Id.
Plaintiff also alleges that he informed Defendants Rivera, Skribiski, Maiorana, and other
officers that notes containing threats were slid under his cell door. Id. ¶ at 23. Subsequently,
Plaintiff was ordered to move to a cell with inmate Banks—one of the inmates who had been sliding
notes under Plaintiff’s door and threatening him. Id. at ¶ 24–25, 29. Despite informing Defendants
of his concerns regarding inmate Banks, Defendant Aubert told Plaintiff that if he did not move, he
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would receive a disciplinary report for refusing housing. Id. at ¶ 26. After moving to a new cell,
Plaintiff, on various occasions, complained to Defendants Skribiski, Maiorana, Irizarry, Bard,
Chylinski, Vanostrand, Brysgel, DeJoinville, and St. Clair that he did not feel safe in his cell and that
he was going to be assaulted by his cellmate inmate Banks. Id. at ¶¶ 29–34. Despite these
complaints, Plaintiff was, once again, ignored. Id. Shortly after, Plaintiff was assaulted in his cell
by inmate Banks, suffering multiple injuries. Id. at ¶ 35–37.
Construed liberally, these allegations are sufficient to support a reasonable inference that
Defendants knew of and disregarded a substantial risk of serious harm to Plaintiff’s safety. Therefore,
Plaintiff’s amended complaint (Doc. 26) sufficiently states a failure to protect claim under Section 1983
against Defendants Rivera, Michaud, White, Aubert, Bard, Chylinski, Vanostrand, Brysgel, DeJoinville,
St. Clair, Irizarry, Skribiski, and Maiorana.
CONCLUSION
In accordance with the foregoing analysis, the Court enters the following orders:
(1)

The Clerk shall verify the current work addresses for defendants Rivera, Michaud,

White, Aubert, Bard, Chylinski, Vanostrand, Brysgel, DeJoinville, St. Clair, Irizarry, Skribiski, and
Maiorana with the Department of Correction Office of Legal Affairs, mail a waiver of service of
process request packet to each defendant 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. Marshal Service on him in his individual capacity and the defendant shall be
required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).
(2)

The Clerk shall send Plaintiff a copy of this Order.
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(3)

The Clerk shall send a courtesy copy of the Complaint and this Order to the

Connecticut Attorney General and the Department of Correction Office of Legal Affairs.
(4)

Defendants shall file their response, either an answer or motion to dismiss, within

sixty (60) days from the date the waiver forms are sent. If they choose to file an answer, they shall
admit or deny the allegations and respond to the cognizable claim recited above. They also may
include all additional defenses permitted by the Federal Rules.
(5)

Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be

completed within seven months (210 days) from the date of this order. Discovery requests need not
be filed with the court.
(6)

All motions for summary judgment shall be filed within eight months (240 days) from

the date of this order.
(7)

Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to a dispositive

motion within twenty-one (21) days of the date the motion was filed. If no response is filed, or the
response is not timely, the dispositive motion can be granted absent objection.
(8)

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

Court Rule 83.1(c)2 provides that the plaintiff MUST notify the court. Failure to do so can result in
the dismissal of the case. Plaintiff must give notice of a new address even if he is incarcerated.
Plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice. It is not enough to just
put the new address on a letter without indicating that it is a new address. If Plaintiff has more than
one pending case, he should indicate all case numbers in the notification of change of address.
Plaintiff should also notify the defendant or the attorney for the defendant of his new address.
(9)

Plaintiff shall utilize the Prisoner E-filing Program when filing documents with the
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court. Plaintiff is advised that the Program may be used only to file documents with the court.
Local court rules provide that discovery requests are not filed with the court. D. Conn. L. Civ. R.
5(f). Therefore, discovery requests must be served on defendants’ counsel by regular mail.
(10)

The Clerk shall immediately enter the District of Connecticut Standing Order Re:

Initial Discovery Disclosures concerning cases initiated by self-represented inmates and shall send a
copy to Plaintiff.
It is SO ORDERED.
Dated:

October 14, 2020
New Haven, Connecticut
/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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