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Mack v. Commissioner Semple

United States District Court, D. Connecticut

November 23, 2016

ANTHONY MACK, Plaintiff,
v.
COMMISSIONER SEMPLE, et al., Defendants.

          INITIAL REVIEW ORDER RE AMENDED COMPLAINT

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Plaintiff, Anthony Mack, currently incarcerated at the Cheshire Correctional Institution, filed a complaint in this case pro se under 42 U.S.C. § 1983. He asserts claims for deliberate indifference to safety and neglect. On June 17, 2016, the Court ordered Mr. Mack to file an amended complaint clarifying his claims. Specifically, the Court directed Mr. Mack to explain what actions each defendant took or failed to take, that resulted in the alleged deprivation of his constitutional rights. See ECF No. 7 at 4. On June 27, 2016, the Court received two amended complaints, mailed in separate envelopes, ECF Nos. 11, 12. Attached to the second Amended Complaint [ECF No. 12] was a note stating, “Void all others use this one.” ECF No. 12 at 1.

         In light of this note, the Court considers ECF No. 12 to be the operative Amended Complaint in this case. On July 7, 2016, and July 11, 2016, Mr. Mack filed documents described as attachments to the Amended Complaint. The Court considers the allegations in the second Amended Complaint and both attachments in this Order. Mr. Mack includes the same defendants, Commissioner Semple, Warden Falcone, Captain McDaniels, Dr. Girbino and Correctional Officer Angel, in the Amended Complaint.

         I. Standard of Review

         Under section 1915A of title 28 of the United States Code, the Court 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. Id. In reviewing a pro se complaint, the Court must assume the truth of the allegations, and interpret them liberally to “raise the strongest arguments [they] suggest[].” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Weixel v. Board of Education of New York, 287 F.3d 138, 146 (2d Cir.2002)). 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 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 “pro 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).

         II. Allegations

         Mr. Mack alleges that, as a child, he was beaten and sexually assaulted while in foster care and also learned about the killing of another child in foster care.

         In May 2015, Mr. Mack alleges that he was doing push-ups in the dayroom at Garner Correctional Institution, when an allegedly transgendered inmate, who allegedly identifies as female, committed a sexual assault against him. Mr. Mack claims that, when he was leaving the dayroom to report the incident to correctional staff, the inmate, who allegedly assaulted him, called him a rat and said he would be accused of rape and that charges would be pressed against him if he reported the incident. Mr. Mack states that he was afraid because there were no cameras in the dayroom.

         Another time, Mr. Mack was sitting in the ping pong dayroom and this same inmate allegedly assaulted him again. After complaining to this inmate, that inmate again allegedly threated to accuse him of rape. On a third occasion, this same inmate allegedly called Mr. Mack to witness an act of masturbation. Again, this inmate allegedly told Mr. Mack that if he told anyone, a claim of rape would be lodged against him by this inmate and another inmate.

         Mr. Mack claims he began to experience nightmares, flashbacks, panic attacks and anxiety attacks. He states that he requested additional medication and was prescribed Seroquel. He also claims he was placed on suicide watch for several days. Mr. Mack states he gave a recorded statement to Prison Rape Elimination Act (“PREA”) staff and was provided some help, although he was reluctant to admit on camera that he allegedly had been humiliated as a man.

         Correctional Officer Angel allegedly told another inmate, who was allegedly intimately involved with the inmate who had assaulted Mr. Mack, that Mr. Mack had spoken with PREA staff. Correctional Officer Angel was allegedly unaware that this inmate planned to marry the inmate who had allegedly assaulted Mack. Mr. Mack opines that, if this inmate loved the allegedly assaultive inmate enough to marry her, he could have killed Mr. Mack.

         Dr. Girbino, allegedly aware of Mr. Mack's history of sexual and physical abuse, knew that the incidents with the allegedly assaultive inmate had caused a setback. Mr. Mack claims, however, that Dr. Girbino approved Mr. Mack's transfer from Garner Correctional Institution to Cheshire Correctional Institution, instead of providing appropriate mental health treatment. According to Mr. Mack, doctors at Cheshire Correctional Institution stated that he requires long-term insight-oriented psychotherapy.

         Mr. Mack claims that inmates at Cheshire Correctional Institution have told Mr. Mack that the allegedly assaultive inmate was transferred from there to Garner Correctional Institution for excessive promiscuity. Mr. Mack also has heard that this inmate tested positive for the AIDS virus, and he is fearful ...


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