United States District Court, D. Connecticut
INITIAL REVIEW ORDER
R. UNDERHILL UNITED STATES DISTRICT JUDGE
Pena, currently incarcerated at Carl Robinson Correctional
Institution in Enfield, Connecticut, filed this case pro
se under 42 U.S.C. § 1983 alleging that he was
assaulted by another inmate. Pena only names the Department
of Correction as defendant. The complaint was signed by Pena
on September 2, 2016, but was not received by the court until
November 2, 2016. Pena's motion to proceed in forma
pauperis was granted on November 7, 2016.
section 1915A of Title 28 of the United States Code, I must
review prisoner civil complaints and dismiss any portion of
the complaint that is frivolous or malicious, that fails to
state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A. Although detailed
allegations are not required, the complaint must include
sufficient facts to afford the defendants fair notice of the
claims and the grounds upon which they are based and to
demonstrate a plausible right to relief. Bell Atlantic v.
Twombly, 550 U.S. 544, 555-56 (2007). Conclusory
allegations are not sufficient. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. Nevertheless, it is well-established that
“[p]ro se complaints ‘must be
construed liberally and interpreted to raise the strongest
arguments that they suggest.'” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006)); see also Tracy v. Freshwater,
623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules
of solicitude for pro se litigants).
January, Pena requested to be transferred to a level 2
correctional facility. He was not moved. ECF No. 1-1 at 1. In
April, Pena's roommate struck him in the face with a lock
and continued to hit him in the face. ECF No. 1 at 6.
Pena's face was swollen. ECF No. 1-1 at 1. He was taken
to the University of Connecticut Health Center for treatment.
Upon his return, a nurse told him that he has nerve damage in
his face. ECF No. 1 at 6.
names only one defendant, the Department of Correction, or
DOC. The Supreme Court has held that the state, state
officials acting in official capacity and “governmental
entities that are considered ‘arms of the
State'” are protected from suit for damages under
the Eleventh Amendment. Will v. Michigan Dep't of
State Police, 491 U.S. 58, 70-71 (1989); Walker v.
State of Connecticut, 2006 WL 1981783, at *2 (D. Conn.
Mar. 15, 2006) (Connecticut Department of Correction is not a
person within the meaning of section 1983). As the Department
of Correction is a state agency and, therefore, an arm of the
State, it cannot be sued for damages under section 1983. All
claims against the Department of Correction are dismissed
pursuant to 28 U.S.C. § 1915A(b)(1).
Pena's allegations are sparse, they may be construed to
assert a claim that correctional officials failed to protect
him from harm. Prison officials have a duty to make
reasonable efforts to ensure inmate safety. See Farmer v.
Brennan, 511 U.S. 825, 832 (1994). To establish a
constitutional violation, Pena must show that the conditions
of his incarceration posed a substantial risk of serious harm
and that prison officials were deliberately indifferent to
his safety. Id. at 834.
it is well settled in this circuit that a plaintiff must
allege facts demonstrating the personal involvement of each
defendant in the alleged constitutional violation before
damages can be awarded. See Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Pena has not identified any correctional official who failed
to protect him from harm.
Court will afford Pena an opportunity to file an amended
complaint. If Pena chooses to do so, the amended complaint
shall include as defendants the correctional officials who
failed to protect him from harm or were deliberately
indifferent to his safety. Pena shall allege facts showing
how each defendant was aware of the danger to him and failed
to ensure his safety.
Motion for Appointment of Counsel
also seeks appointment of pro bono counsel pursuant
to 28 U.S.C. § 1915. The Second Circuit repeatedly has
cautioned the district courts against the routine appointment
of counsel. See, e.g., Ferrelli v. River Manor
Health Care Center, 323 F.3d 196, 204 (2d Cir. 2003);
Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir.
1997). The Second Circuit also has made clear that, before an
appointment is even considered, the indigent person must
demonstrate that he is unable to obtain counsel. Saviano
v. Local 32B-32J, 75 F. App'x 58, 59 (2d Cir. 2003)
(quoting Cooper v. A. Sargenti Co., 877 F.2d 170,
173 (2d Cir. 1989)).
identifies only one lawyer that he contacted. He does not
indicate that he contacted Inmates' Legal Aid Program,
the organization created to provide legal assistance to
Connecticut inmates. Absent contact with Inmates' Legal
Aid Program, the court cannot determine whether Pena can
obtain legal ...