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Rogers v. Hines

United States District Court, D. Connecticut

December 20, 2016

WAYNE ROGERS, Plaintiff,
v.
GERALD HINES, et al., Defendants.

          RULING ON DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S SECOND AMENDED COMPLAINT

          Michael P. Shea United States District Judge.

         Plaintiff Wayne Rogers, currently incarcerated at the MacDougall-Walker Correctional Institution in Suffield, Connecticut, filed this case pro se under 42 U.S.C. § 1983. By Initial Review Order filed May 4, 2016, the Court dismissed all claims against Defendants Chapdelaine, Guadarrama, Millian, Malorana, and Bennett. The claims against defendants Hines, Rivera, Anaya, Mahoney, Strange, Danek, Mclain, and Simmons[1] for sexual assault and sexual harassment, use of excessive force, unconstitutional conditions of confinement, supervisory liability, and deliberate indifference to safety remain pending. See ECF No. 13 at 10.

         The defendants move to dismiss some of the remaining claims on the grounds that the court lacks jurisdiction and the plaintiff fails to state cognizable claims.[2] The plaintiff has filed a memorandum in opposition to the motion along with a second amended complaint. In his memorandum, the plaintiff mistakenly assumes that he may file an amended complaint as of right in response to a motion to dismiss. Federal Rule of Civil Procedure 15(a)(1) provides that “a party may amend its pleading once as a matter of course….” The plaintiff filed an amended complaint on April 8, 2016. Thus, he may amend his complaint only with the written consent of the defendants or leave of court. See Fed. R. Civ. P. 15(a)(2). As the plaintiff neither submitted written consent from the defendants nor sought leave of court to file a second amended complaint, the second amended complaint is ordered stricken from the record. The Court considers the motion to dismiss as applied to the first amended complaint. For the reasons that follow, the motion is granted in part and denied in part.

         I. Facts

         The plaintiff alleges the following facts in the amended complaint. The plaintiff was transferred to MacDougall-Walker Correctional Institution in August 2015, after being regressed to Phase I of the Security Risk Group Program. Defendant Mclain began making sexual gestures and comments to the plaintiff. He also began requiring the plaintiff to undergo strip searches before recreation and phone time. Defendant Mclain required the plaintiff to bend at the waist and spread his buttocks instead of utilizing the normal procedure of squatting and coughing.

         The plaintiff became uncomfortable with the comments. In early September 2015, he submitted an inmate request to Unit Manager Rivera. For the next few weeks, the comments stopped but the full strip searches continued. The plaintiff assumed that this change in conduct was the result of defendant Rivera speaking to defendant Mclain.

         In October 2015, the situation worsened. Inmates in Phase I only shower three days per week. Following a workout, the plaintiff partially covered his cell door window while he washed himself at the sink. Defendant Mclain stopped at plaintiff's cell and insisted that the plaintiff uncover the window. He then made a suggestive comment about plaintiff's lips and walked away. The plaintiff again complained to defendant Rivera. The comments stopped for the next six weeks.

         On November 23, 2015, the plaintiff was exercising in his cell when defendant Mclain toured the unit. Defendant Mclain commented that the plaintiff needed more protein and later, when distributing food, gave the plaintiff an apple. Following the meal, which was eaten in the cell, the plaintiff covered his cell door window to wash up in the sink. Defendant Mclain toured the unit and ordered the plaintiff to remove the covering. When the plaintiff uncovered the window, defendant Mclain made sexually suggestive comments about the plaintiff's body. The plaintiff re-covered the window and told defendant Mclain to go away.

         That evening the plaintiff had a scheduled phone call. Defendant Simmons came to the cell with another officer to escort the plaintiff to his call. The plaintiff and his cellmate were ordered handcuffed and the plaintiff was escorted to the phone call. When defendant Simmons was about to uncuff plaintiff's cellmate, defendant Mclain stated that he wanted to search the cell. Plaintiff's cellmate was escorted to the showers for the duration of the search.

         A tattoo gun was found in the cell. Defendant Danek was called to the housing unit. The plaintiff admitted that the tattoo gun was his and received a disciplinary report for contraband. The plaintiff and his cellmate were moved to another cell because a light in their cell was broken. While property was being transferred to the new cell, the plaintiff was standing against the back wall of the new cell. Defendant Mclain was standing with his left hand against the plaintiff's chest. The plaintiff assumes that this was in accordance with department policy. Defendant Mclain then grabbed the plaintiff's genitals with his right hand and stated that the plaintiff should have “made it easier, ” ECF No. 10 at 21, ¶ 15, implying that the disciplinary report was issued because the plaintiff failed to cooperate with defendant Mclain. The plaintiff reported the conduct to defendant Danek, who treated it as a joke. The plaintiff requested preservation of video of the officer in his cell and leaving it. That evening, the plaintiff submitted a request to Deputy Warden Hines regarding sexual harassment.

         On November 24, 2015, the plaintiff spoke to defendant Rivera about his issues with defendant Mclain. That evening, defendant Mclain distributed the meals. When defendant Mclain told the plaintiff to come and get his tray because it was special and would help him grow strong, the plaintiff threw the food at defendant Mclain. The plaintiff hoped that this action would result in creation of a separation profile to keep him away from defendant Mclain. Either defendant Mclain or defendant Simmons closed the food trap. Defendant Mclain threatened to beat the plaintiff when he entered the cell.

         Defendants Anaya, Strange, and Mahoney arrived at the cell. When defendant Strange asked who threw the food and why, the plaintiff explained what had happened the night before and that he was trying to get a separation profile. Defendant Mahoney ordered the plaintiff to be handcuffed and taken to restrictive housing. The plaintiff stated that he did not feel safe without a camera present. Defendant Mahoney stated that no camera was necessary and began to spray a chemical agent into the plaintiff's cell. The plaintiff attempted to block the spray with his hands and mattress. Defendant Simmons ripped the mattress while trying to pull it away from the plaintiff. The mattress became lodged in the food trap. Defendant Mahoney threatened to physically assault the plaintiff when he arrived in restrictive housing. Defendant Anaya ordered defendant Mahoney to calm down. He also ordered a camera operator to record the remainder of the incident. The plaintiff was handcuffed and defendant Strange escorted him to restrictive housing for decontamination. The plaintiff requested preservation of this recording.

         The plaintiff was improperly decontaminated. He was subjected to a forceful strip search and confined in in-cell restraints per order of defendants Anaya and Strange. Although Department of Correction policy states that in-cell restraints should be used only to gain compliance from acutely disruptive inmates, correctional staff routinely use in-cell restraints as punishment whenever a supervisor is disobeyed.

         The plaintiff was placed in a behavior observation cell that smelled of feces and urine. The plaintiff later discovered that there were feces under the bed, and smeared on the walls and window sill. There was urine all over the floor and blood on the sink and toilet. The cell was very cold and the plaintiff was not permitted socks. When the plaintiff complained about the cell conditions, defendant Mahoney stated that he could not smell anything and that the plaintiff did not deserve better. Over the next few days, the plaintiff vomited several times from the smell, he became sick whenever he ate and, when he left the cell, felt as if he had a fever for the next few days. Plaintiff remained in the cell for sixty-four hours. During the entire time, the lights remained on. The conditions prevented the plaintiff from performing his religious prayers.

         When the plaintiff returned to his cell, he found that defendant Mclain was still assigned to the housing unit. He requested a separation profile. Defendant Hines denied the request. The plaintiff filed several inmate requests, grievances, and grievance appeals. Many of these documents did not reach their intended destinations. The ...


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