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Pena v. Doc

United States District Court, D. Connecticut

November 21, 2016

ANTONIO PENA, Plaintiff,
v.
DOC, Defendant.

          INITIAL REVIEW ORDER

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         Antonio 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.

         Under 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).

         I. Allegations

         In 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.

         II. Analysis

         Pena 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).

         Although 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.

         However, 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.

         The 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.

         III. Motion for Appointment of Counsel

         Pena 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)).

         Pena 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 ...


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