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McClendon v. Maldonado

United States District Court, D. Connecticut

August 31, 2017

SEVILLE K. McCLENDON, Plaintiff,
v.
WARDEN MALDONADO, et al., Defendants.

          INITIAL REVIEW ORDER

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         Seville K. McClendon is incarcerated at the Carl Robinson Correctional Institution. He has filed apro se complaint under 42 U.S.C. § 1983 against Correctional Officer Smiley, Lieutenant Perez, and Warden Maldonado, as well as a motion for appointment of counsel.

         I. Complaint [Doc. No. 1]

         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, 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. Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants "fair notice" of the claims and grounds upon which they are based and to "raise a right to relief above the speculative level." BellAtl. Corp. v. Twombfy, 550 U.S. 544, 555 (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." Twombfy, 550 U.S. at 570. Nevertheless, it is well-established that u\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).

         The following allegations are taken from McClendon's complaint, Doc. No. 1, and assumed to be true for the purposes of this ruling. See Iqbal, 556 U.S. at 679. On June 13, 2016, McClendon took a shower at Osborn Correctional Institution. When he finished taking a shower, he asked another inmate to request that an officer release the shower door. Officer Smiley came to the shower and verbally harassed McClendon about his genitals, made other sexually derogatory comments, and refused to open the shower door. McClendon remained in the shower until he had the opportunity to ask another inmate to request that his shower door be opened.

         After McClendon's release from the shower he attempted to speak to Officer Smiley regarding her reasons for refusing to open the shower door and verbally harassing him. Officer Smiley indicated that she was not required to immediately respond to inmate requests. McClendon asked Officer Smiley if he could speak to a lieutenant because he sought to assert a sexual harassment claim against her.

         Officer Smiley then issued McClendon a disciplinary report for flagrant disobedience. Lieutenant Perez spoke to McClendon in his office. McClendon accused Officer Smiley of sexually harassing him, stated that he did not feel safe and requested to make a statement to the Connecticut State Police and to assert a claim under the Prison Rape Elimination Act (“PREA”).

         Lieutenant Perez stated that he would not comply with McClendon's requests and issued an order that McClendon be transferred to a cell in the restrictive housing unit pursuant to the disciplinary report issued by Officer Smiley for flagrant disobedience. Before his placement in the restrictive housing unit, officers escorted McClendon to the medical unit. McClendon informed staff members in the medical unit that Officer Smiley had sexually harassed him. After being placed in a cell in the restrictive housing unit, McClendon related his allegations of sexual harassment to a member of the mental health unit. In response to those allegations, the mental health unit staff member sought the approval of Lieutenant Perez to move McClendon to a different cell to be monitored more closely. Lieutenant Perez authorized the transfer of McClendon to a new cell as well as the removal of his clothing and catheter and his placement in in a special gown. McClendon remained in the cell overnight.

         When a mental health physician spoke to McClendon the next morning, she ordered officials to move McClendon to a regular cell in the restrictive housing unit. During his stay in the restrictive housing unit, McClendon sent a request to Warden Maldonado regarding the sexual harassment by Officer Smiley and actions of Lieutenant Perez, but did not receive a response.

         Four days after his arrival in the restrictive housing unit, Captain Colon visited McClendon and listened to his allegations of sexual harassment by Officer Smiley. After reviewing the videotapes of the incidence, Captain Colon started the process of filing a PREA complaint on McClendon's behalf against Officer Smiley. McClendon remained in the restrictive housing unit for nine more days before a counselor came to speak to him about reducing the disciplinary report to a Class B offense. The counselor informed McClendon that if he pleaded guilty to the infraction, he would be released from restrictive housing. McClendon pleaded guilty to the Class B offense and prison officials released him from the restrictive housing unit.

         McClendon then sent a request to Warden Maldonado seeking a dismissal of the disciplinary report altogether. The warden did not respond to the request.

         On June 28, 2016, a Connecticut State Trooper came to Osborn to speak to McClendon regarding his claim of sexual harassment against Officer Smiley. The Trooper took McClendon's statement and filed a report.

         Two days later, prison officials transferred McClendon to Carl Robinson Correctional Institution. No one responded to McClendon's grievances against Officer Smiley or Lieutenant Perez and officials did not dismiss the disciplinary report.

         A. Official Capacity Claims

         McClendon seeks monetary damages, restoration of his good time credits and an order directing the State of Connecticut to file criminal charges against the defendants. For the reasons set forth below, all official capacity claims are dismissed. To the extent that McClendon seeks monetary damages from the defendants in their official capacities, that claim is barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169-70 (1985) (Eleventh Amendment, which protects the state from suits for monetary relief, also protects state officials sued for damages in their official capacities); Quern v. Jordan, 440 U.S. 332, 342 (1979) (Section 1983 does not override a state's Eleventh Amendment immunity). The claim for monetary damages against the defendants in their official capacities is dismissed pursuant to 28 U.S.C. § 1915A(b)(2).

         A victim of allegedly criminal conduct is not entitled to a criminal investigation or the prosecution of the alleged perpetrator of the crime. See Leeke v. Timmerman, 454 U.S. 83 (1981) (per curiam) (inmates alleging beating by prison guards lack standing to challenge prison officials' request to magistrate not to issue arrest warrants); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); McCrary v. County of Nassau, 493 F.Supp.2d 581, 588 (E.D.N.Y. 2007) (“A private citizen does not have a constitutional right to compel government officials to arrest or prosecute another person.”); Osuch v. Gregory, 303 F.Supp.2d 189, 194 (D. Conn. 2004) (“An alleged victim of a crime does not have a right to have the alleged perpetrator investigated or criminally prosecuted.”). Thus, I cannot award McClendon the relief he seeks in the form of an order directing the Connecticut State Police or the State's Attorney's Office to file criminal charges against the defendants related to their conduct as described in the complaint. The request for relief seeking to have the defendants criminally prosecuted is dismissed. See 28 U.S.C. § 1915A(b)(1).

         McClendon claims that he lost good time credit as a result of pleading guilty to the Class B disciplinary report. Because good time credit may no longer be earned by inmate who committed a crime on or after October 1, 1994, the court construes McClendon's claim as a loss of Risk Reduction Earned Credits (“RREC”). See Conn. Dep't of Corr. Admin. Directive 4.2(6)(A)(4) (2012), available at http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0402.pdf (“Statutory Good Time is NOT authorized” for “[s]entences for an offense committed on or after October 1, 1994.”). If an inmate was convicted of a crime committed after October 1, 1994, prison officials may forfeit the inmate's RREC as a disciplinary sanction. See Admin. Directive 4.2A(11) (2013), available at http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0402a.pdf. As of January 1, 2016, “RREC that is forfeited shall not be restored.” See Id. Thus, the plaintiff has no right to the restoration of the RREC he lost as a result of the disciplinary sanction he received after pleading guilty to the Class B offense. This claim for injunctive relief is dismissed.[1] See 28 U.S.C. § 1915A(b)(1).

         B. PREA Claim

         McClendon asserts that on June 13, 2016, he informed Lieutenant Perez that Officer Smiley had sexually harassed him and that he sought to file a claim under the PREA. Lieutenant Perez indicated that he would not assist McClendon in filing a PREA claim. A week or ...


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