United States District Court, D. Connecticut
INITIAL REVIEW ORDER
CHARLES S. HAIGHT, JR., SENIOR UNITED STATES DISTRICT JUDGE
Courtney Green, currently incarcerated at Osborn Correctional
Institution ("Osborn") in Somers, Connecticut,
filed this complaint pro se pursuant to 42 U.S.C.
§ 1983. He has named as Defendants Warden Edward
Maldonado, Deputy Warden Gary Wright, Dr. Johnny Wright,
Health Services Administrator Richard Furey, and Correctional
Officer Kopacz. Each Defendant is sued only in his or her
individual capacity. Plaintiff contends that Defendants have
discriminated against him based on his disability and
subjected him to unconstitutional conditions of confinement.
STANDARD OF REVIEW
section 1915A of title 28 of the United States Code, the
Court must review all prisoner civil complaints against
governmental actors, and dismiss any portion of the complaint
that “is frivolous, malicious, or 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(b)(1), (2).
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); see also 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)).
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. Bell Atlantic v. Twombly, 550 U.S. 544,
555-56 (2007). A plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face."
Id. at 570. "Even in a pro se case, however . .
. threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not
suffice." Chavis v. Chappius, 618 F.3d 162, 170
(2d Cir. 2010) (internal quotation marks and citation
omitted). Nor may the Court "invent factual
allegations" plaintiff has not pleaded. Id.
factual allegations contained in Green's Complaint are
recounted herein, recited in the light most favorable to
Green. On or about October 21, 2016, Green was transferred to
Osborn. Doc. 1 ¶ 1. He was housed in "E-Unit, 24
cell, " which was in emergency lockdown. Id.
After three days, he was allowed to shower. Id. When
he entered the shower, it was a small room with a grated
steel door and a window that allowed him to see into the
corridor and those in the corridor to see him. Id.
The floor of the shower appears to be made of tile over a
concrete floor that is always very wet and slippery.
Id. There is nothing to hold onto in the shower to
keep ones balance and prevent one from falling over.
Id. There is also about a three foot wall that Green
has to step over to enter and exit the shower. Id.
middle of November 2016, Green wrote to "counselor
supervisor Long, " the American Disabilities Act
("ADA") coordinator at Osborn through an inmate
request regarding the shower seeking an accommodation.
Id. ¶ 2. Long did not respond to Green's
request for a shower accommodation. Id. On or about
December 1, 2016, Green was sent to Dr. Wright regarding an
unrelated issue to the claim of ADA discrimination; however,
during the meeting Green asked for assistance in obtaining
accommodations for a shower in the housing unit that would
not require him to step over the wall to get in and out of
the shower. Id. ¶ 3. Dr. Wright explained that
he was unaware of the wall and inquired as to why Green
needed the accommodations. Id. Green showed Dr.
Wright his surgically repaired leg and ankle, which are also
arthritic. Id. Dr. Wright agreed that Green's
leg was impaired and issued him a bottom bunk pass.
Id. Dr. Wright informed Green that he did not meet
the criteria or requirements for specialized housing where
there are handicap-accessible showers despite admitting that
Green had a physical impairment. Id. ¶ 4. Green
asked about the requirements and Dr. Wright expressed that an
inmate must be wheelchair bound, missing a limb, on crutches,
or require the use of a cane to obtain the specialized
housing. Id. Dr. Wright informed Green that there
were inmates in far worse shape than him. Id. Dr.
Wright never examined or treated Green's leg or ankle and
did not log any complaint about Green's leg or ankle.
Id. ¶ 5.
about December 5, 2016, Green wrote to his unit counselor
McMillian via an inmate request, seeking a facility transfer
to accommodate his needs for a shower due to his physical
impairment. Id. ¶ 6. McMillian responded that
Green had been submitted for a facility transfer, which was
subsequently denied. Id. On or about December 6,
2016, Green filed an appeal based on Long's failure to
reply to his request in a timely manner, violating
Administrative Directive 9.6(6)(C). Id. ¶ 7.
Shortly thereafter, Green wrote to Deputy Warden Gary Wright
via an inmate request seeking a change in housing for a unit
that had a shower without the three foot wall. Id.
¶ 8. Deputy Warden Wright did not respond to Green's
complaint, which is a common practice at Osborn. Id.
On December 15, 2016, Green requested reasonable
accommodations by filing "CN 101902 form pursuant to CT
Department of Corrections." Id. ¶ 9.
about January 10, 2017, Green's ADA appeal was returned
by Correctional Officer Administrative Remedies Coordinator
Kopaz. Id. ¶ 10. The disposition reflects the
wrong year in its date by mistake. Id. ¶ 11.
The reason for the rejection of the appeal was because an
appeal can be filed only when a decision by the ADA
coordinator had been made. Id. Because no such
decision had been made at the time of the appeal, Green's
appeal was rejected. Id. Kopaz signed Green's
ADA form explaining that he had exhausted his Administrative
Remedies even though he never received a formal decision.
Id. Green believes this was done to "create
impediments" in his request to obtain remedies and
accommodations. Id. Warden Maldonado also signed
Green's ADA appeal. Id.
thereafter Green saw Captain Manning, the first shift
commander, during a tour of B-Unit, Green's current
housing unit. Doc. 1 ¶ 12. He asked Manning if Kopacz
was trained or certified in ADA compliance and Manning told
him that Kopacz was not; only Captain Colon and Long are
trained and certified in ADA compliance. Id. On
February 1, 2017, Green received his "CN 101901
form" and it was denied because Green did not meet the
requirements for specialized housing based on Dr.
Wright's review. Id. ¶ 13. Deputy Warden
Wright and Richard Furey signed this declination.
Id. In the later part of February 2017, Green became
aware of a December 30, 2016 email regarding his ADA
accommodations. Id. ¶ 14. In the email, which
was between Furey, Elizabeth Mahar, and Dr. Wright, Furey
emailed Mahar saying that Green should be seen by a doctor to
determine if he needs a handicapped shower. Id.
Furey remarked that Green "[c]laims he has a rod in his
leg that does not allow him to step over the shower
wall" and that "[t]his is an ADA request so once
seen, contact Devonia Long, as she has to close out the ADA
accommodation form." Id. Dr. Wright later
responded saying "I have already seen this inmate and he
questioned me in regards to ADA accommodation. I informed him
that he did not meet the criteria for ADA accommodations.
This was noted in his chart because it was informal, oh by
the way inquiry. If necessary, I can make a formal
documentation in his chart." Id. Green is
currently still subjected to these "dangerous shower
conditions, " which have forced "him to walk on
very slippery surfaces and step over a 3ft wall to
participate in the benefits of the services, programs or
activities of a public entity (shower)." Id.
Complaint contains three specific causes of action. Doc. 1 at
5-6. However, the Court will construe his causes of action
liberally to raise the strongest claim suggested. Green
asserts a § 1983 claim based on the negligence and
actions of each of the Defendants in failing to accommodate
his serious needs in violation of the Eighth Amendment.
Id. at 6. According to Green, he was deprived of the
"minimal civilized measure of life's necessities
(shower accommodations)" by Defendants and this violated
his right to be free from cruel and unusual punishment.
Id. at 5. Green also asserts that he been
discriminated against based on his disability/impairment and
has not been provided a reasonable accommodation for his
medical needs. Id. at 5. He asserts this claim
against each of the Defendants. Id. Although he
labels it a § 1983 claim based on a violation of his
Eighth Amendment rights, his allegations are more properly
construed as an ADA violation claim, 42 U.S.C. § 12101,
et seq. Finally, he asserts a § 1983 claim
based on the denial of his rights under the Fourteenth
Amendment because he was denied equal treatment and
discriminated against because of his disability/impairment.
Id. at 6. He also asserts this claim against each of
the Defendants. Id. Green seeks declaratory relief,
compensatory and punitive damages as well as reasonable
attorneys's fees and costs. Id. at 7.
Court will assess each of Green's three claims to
determine whether any claim “is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
” or a claim that “seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b)(1), (2). The Court will address each claim.