Jackson v. Cooks et al

Filing 40

ORDER: The defendants' motion to dismiss (ECF No. 34 ) is hereby GRANTED for the reasons set forth in the attached ruling. The case will proceed on only the Eighth Amendment claims against the defendants for monetary relief in their individual capacities and for non-monetary relief in their official capacities; and the state law claim for intentional infliction of emotional distress against the defendants in their individual capacities for monetary relief only. Signed by Judge Alvin W. Thompson on 1/7/2021. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ALBERT M. JACKSON, JR.,
Plaintiff,
v.
COOKS, et al.,
Defendants.

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: Civil No. 3:19-cv-983 (AWT)
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RULING ON MOTION TO DISMISS
The plaintiff, Albert M. Jackson, Jr., currently
incarcerated at MacDougall-Walker Correctional Institution in
Suffield, Connecticut, filed this action challenging the
conditions of his confinement at Garner Correctional
Institution.
following

After initial review of the complaint, the

claims remain: federal claims for deliberate

indifference to health and safety relating to radon gas exposure
against defendants Cooks, Corcella, Semple, Falcone, Link, and
Batten and for denial of access to courts against defendants
Semple and Falcone in their individual and official capacities
and a supplemental state law claim for intentional infliction of
emotional distress against defendants Cooks, Corcella, Semple,
Falcone, Link, and Batten in their individual capacities only.
See Initial Review Order, ECF No. 7.
Remaining defendants Cooks, Corcella, Semple, Falcone,
Link, and Batten have filed a motion to dismiss intended to

bring the claims in the case in line with the claims in the
other cases in this district challenging radon gas exposure.
For the reasons that follow, the defendants’ motion is granted.
I.

Legal Standard
To withstand a motion to dismiss filed pursuant to Federal

Rule of Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief 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)).

“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.”

Id.

The

plausibility standard is not a probability requirement; the
pleading must show, not merely allege, that the pleader is
entitled to relief.

Id.

Legal conclusions and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements,” are not entitled to a presumption of
truth.

Id.

However, when reviewing a motion to dismiss, the

court must accept the factual allegations in the operative
complaint as true and draw all reasonable inferences in the nonmovant’s favor.

Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.

2012).
If, on a motion to dismiss, “matters outside the pleadings
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are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56.”
Civ. P. 12(d).

Fed. R.

However, extrinsic evidence that is attached to

the pleadings or incorporated by reference may be considered on
a motion to dismiss, as well as matters of which judicial notice
may be taken.

See New York Pet Welfare Ass’n, Inc. v. City of

New York, 850 F.3d 79, 86 (2d Cir. 2017).
II.

Factual Background
The plaintiff is a Massachusetts-sentenced inmate confined

in Connecticut under the Interstate Corrections Compact.

He

alleges that he was confined at Garner Correctional Institution
(“Garner”) for more than twenty years. 1

ECF No. 1 ¶ 7.

Radon testing was performed at Garner in December 2013 and
January 2014.

Id., ¶ 49.

Installation of a radon mitigation

system was completed in October 2014.

It served only those

areas where testing showed excessive radon levels.
The plaintiff’s housing unit was not tested.

Id., ¶ 32.

Id., ¶ 33.

In January 2019, the plaintiff began suffering from severe
headache, fever, dramatic weight loss, and coughing up blood,
symptoms he attributes to radon exposure.

Id. ¶ 9.

III. Analysis
The defendants move to dismiss all claims except the Eighth

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The response to an inmate grievance, attached to the complaint,
indicates that the plaintiff was first housed at Garner in 2013, only
seven years before he commenced this action. See ECF No. 1-1 at 5.

3

Amendment claims against the defendants for monetary relief in
their individual capacities and for non-monetary relief in their
official capacities; and the state law claim for intentional
infliction of emotional distress against the defendants in their
individual capacities for monetary relief only.
A.

Eighth Amendment Claim

The plaintiff is not the only inmate pursuing litigation
relating to radon exposure at Garner.

There is a consolidated

class action challenge, Vega v. Semple, No. 3:17-cv-107(JBA),
and Cruz v. Semple, No. 3:17-cv-348(JBA).

Many of the

plaintiff’s claims also were asserted in Vega.
In Vega, the district court held that correctional
officials were not on notice that inmates had a right to be free
from toxic environmental substances until the Supreme Court’s
decision in Helling v. McKinney, 509 U.S. 25 (1993), and,
therefore, were protected by qualified immunity for any actions
prior to June 18, 1993, the date of that decision.

On appeal,

the Second Circuit affirmed the district court’s determination
that correctional officials were protected by qualified immunity
against any Eighth Amendment claims for radon exposure prior to
Helling.

Vega v. Semple, 963 F.3d 259, 275-77 (2d Cir. 2020).

As the plaintiff asserts the same Eighth Amendment claims
against the defendants, they are protected by qualified immunity
in this action for any events occurring prior to the June 18,
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1993 Helling decision.

The defendants’ motion to dismiss on

this ground is granted.
B.

Clarification of Relief on Eighth Amendment Claim

The defendants also seek to clarify that, with respect to
the Eighth Amendment claim, the plaintiff may seek only monetary
relief from the defendants in their individual capacities and
only non-monetary relief from them in their official capacities.
Claims for prospective relief against a state official may
be asserted against the official in his official capacity only.
See Arzuaga v. Quiros, No. 3:10-cv-1200(DJS), 2015 WL 13021466,
at *1 (D. Conn. Nov. 9, 2015) (injunctive relief is not
available from the defendants in their individual capacities)
(citations omitted); Poe v. Massey, 3 F. Supp. 2d 176, 176 (D.
Conn. 1998).

This is so because, as an individual, the

defendant is not authorized to take actions on behalf of the
state.
In addition, the Eleventh Amendment prohibits monetary
relief against state officials in their official capacities
unless the state has waived this immunity or Congress has
abrogated it.

Kentucky v. Graham, 473 U.S. 159, 169 (1995).

Section 1983 does not abrogate state sovereign immunity, Quern
v. Jordan, 440 U.S. 332, 343 (1979), and the plaintiff has
alleged no facts suggesting that the state has waived immunity
in this case.

Thus, the plaintiff cannot recover monetary
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relief from the defendants in their official capacities.
The defendants’ motion to dismiss is granted to the extent
that it seeks to clarify what relief is available from the
defendants in their individual and official capacities.
C.

Fifth Amendment Due Process Claim

The defendants note that the plaintiff refers to both the
Fifth and Fourteenth Amendments, but the court referenced only
the Fourteenth Amendment in its discussion of the plaintiff’s
due process claim.
The Due Process Clause of the Fifth Amendment applies to
the federal government while the Due Process Clause of the
Fourteenth Amendment applies to the states.

Welch v. United

States, ___ U.S. ___, 136 S. Ct. 1261-62 (2016).

As all

defendants are state employees, there is no basis for a due
process claim under the Fifth Amendment.

In addition, no other

provision of the Fifth Amendment is applicable to the facts of
this case.

The defendants’ motion to dismiss is granted as to

any Fifth Amendment due process claim.
D.

Access to Courts

The plaintiff contends that defendants Semple and Falcone
denied him access to the courts by concealing the results of the
2013 and 2014 radon tests.

The defendants move to dismiss the

access to courts claim on two grounds, failure to state a
cognizable claim and qualified immunity.
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A prisoner’s right of access to the courts encompasses “the
capability of bringing contemplated challenges to sentences or
conditions of confinement before the courts.”
518 U.S. 343, 356 (1996).

Lewis v. Casey,

The Supreme Court has specifically

rejected the notion that the right of access to the courts
requires prison officials to “enable the prisoner to discover
grievances.”

Id. at 354.

Thus, the plaintiff has no right to

have the defendants inform him of potential lawsuits.
Also, to state a claim for denial of access to the courts,
the plaintiff must have suffered an actual injury.

To establish

an actual injury, the plaintiff must allege facts showing that
the defendants took, or were responsible for, actions that
hindered his efforts to pursue a legal claim, prejudiced one of
his existing actions, or otherwise actually interfered with his
access to the courts.
(2d Cir. 2002).

See Monsky v. Moraghan, 127 F.3d 243, 247

As the defendants note, the plaintiff has

commenced this action.

Thus, he has not suffered an actual

injury regarding this claim.
As the plaintiff has no constitutional right to have the
defendants inform him of possible lawsuits, the defendants’
motion to dismiss is granted as to the access to courts claim.
E. State Law Claims for Injunctive Relief
On initial review, the court permitted the state law claim
for intentional infliction of emotional distress to proceed.
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The court did not specify the relief available on that claim.
The defendants move to dismiss any claim for injunctive relief
on the claim for intentional infliction of emotional distress.
The Supreme Court has held that the Eleventh Amendment
prohibition against claims against the states for violation of
state law applies to state law claims brought in federal court
under the court’s supplemental jurisdiction.

Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).

In Vega,

the Second Circuit, relying on Pennhurst, dismissed all claims
for prospective relief for violations of state law.
F.3d at 284.

Vega, 963

The defendants’ motion to dismiss is granted in

that the state law claim for intentional infliction of emotional
distress will proceed against the defendants for damages only.
F.

Declaratory Relief

Finally, the plaintiff references declaratory relief in his
prayer for relief.

The defendants move to dismiss the request

for declaratory relief.
Declaratory relief serves to “settle legal rights and
remove uncertainty and insecurity from legal relationships
without awaiting a violation of the rights or a disturbance
of the relationships.”

Colabella v. American Inst. of

Certified Pub. Accountants, 10-CV-2291 (KAM) (ALC), 2011 WL
4532132, at *22 (E.D.N.Y. Sep. 28, 2011) (citations
omitted).

Thus “[d]eclaratory relief operates
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prospectively to enable parties to adjudicate claims before
either side suffers great damages.”

Orr v. Waterbury

Police Dep’t, No. 3:17-CV-788 (VAB), 2018 WL 780218, at *7
(D. Conn. Feb. 8, 2018).

In Orr, the court dismissed the

request for a declaratory judgment that the defendants had
violated the plaintiff’s Fourth Amendment rights during his
arrest because the request “concern[ed] only past actions.”
Id.

The plaintiff includes a general request for “such

Declaratory Relief as this Court shall consider fair and
equitable.”

ECF No. 1 at 31.

“[D]ismissal of a declaratory judgment action is warranted
where the declaratory relief plaintiff seeks is duplicative of
his other causes of action.”

Kuhns v. Ledger, 202 F. Supp. 3d

433, 443 (S.D.N.Y. 2016) (citation, alterations, and ellipsis
omitted).

If the plaintiff were to prevail on his claim for

deliberate indifference to health and safety, a judgment in his
favor would serve the same purpose as a declaration that the
defendants violated his constitutional rights.

Thus, absent any

specific request for prospective declaratory relief, the
plaintiff’s request for declaratory relief is not distinct from
the relief sought in his section 1983 claims.

See, e.g., United

States v. $2,350,000.00 in Lieu of One Parcel Case of Property
Located at 895 Lake Avenue, Greenwich, Connecticut, 718 F. Supp.
2d 215, 229 n.7 (D. Conn. 2010) (noting that if property is not
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forfeited, receiver-claimants would have been shown to be
prevailing innocent owners and declaration to that effect would
be redundant).

The defendants’ motion to dismiss is granted as

to the request for declaratory relief.
IV.

Conclusion
The defendants’ motion to dismiss [ECF No. 34] is hereby

GRANTED.

The case will proceed on only the Eighth Amendment

claims against the defendants for monetary relief in their
individual capacities and for non-monetary relief in their
official capacities; and the state law claim for intentional
infliction of emotional distress against the defendants in their
individual capacities for monetary relief only.
It is so ordered.
Signed this 7th day of January 2021 at Hartford,
Connecticut.

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Alvin W. Thompson
United States District Judge

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