United States District Court, D. Connecticut
CHAD J. PETITPAS, Plaintiff,
ROBERT MARTIN, et al., Defendants.
INITIAL REVIEW ORDER
Jeffrey Alker Meyer United States District Judge
Chad J. Petitpas is a prisoner in the custody of the
Connecticut Department of Correction. He has filed a
complaint pro se and in forma pauperis
under 42 U.S.C. § 1983 against various prison officials.
In essence, he contends that these officials retaliated
against him in various ways following his prior successful
litigation against the Department of Correction. The named
defendants are Warden Robert Martin, Deputy Warden William
Colon, Captain Robert Judd, Officer Lesniewski and Officer
Kurtzenacker. After initial review, I conclude that the
complaint should proceed on plaintiff's Fourth Amendment
claim against Lesniewski and on plaintiff's First
Amendment retaliation claim against Martin, Colon,
Lesniewski, and Kurtzenacker.
following allegations from plaintiff's complaint are
accepted as true for purposes of this ruling. On June 13,
2017, plaintiff settled a federal civil rights action. On
June 14, 2017, pursuant to the settlement agreement,
plaintiff was transferred to Brooklyn Correctional
Institution. Upon his arrival, Lesniewski, who was the phone
monitor officer at Brooklyn, began telling people that
plaintiff had gotten three officers fired and two others
demoted as a result of the prior lawsuit. He also made clear
his disagreement with the portion of the settlement agreement
providing that plaintiff could not be transferred without his
written consent. Other officers advised plaintiff to avoid
Lesniewski, who was scheduled to retire the following week.
Doc. #1 at 6-7.
27, 2017, Lesniewski removed from plaintiff's master file
two documents authorizing plaintiff to correspond with two
other inmates. Lesniewski then issued plaintiff a Class A
disciplinary ticket for corresponding with other inmates. In
the disciplinary report, Lesniewski stated that plaintiff has
won a lawsuit against the Department of Correction and that
three officers had been fired and two demoted as a result of
the suit. The comment was not relevant to the disciplinary
charge and included to ensure that any hearing officer would
be biased against plaintiff. Id. at 7.
Martin refused to investigate the charge. He offered
plaintiff two options- plead guilty or fight the charge from
restrictive housing at Corrigan Correctional Institution.
Plaintiff pled guilty. Ibid.
spoke to defendants Judd and Colon about harassment by
Lesniewski regarding personal matters he included in
correspondence and conversations with his attorney. Plaintiff
provided evidence that Lesniewski was monitoring
plaintiff's confidential legal calls. Lesniewski had
allegedly altered the privacy setting and name associated
with counsel's phone number to allow him to listen to the
legal calls. The name Lesniewski substituted was the name of
a gang member. He also allegedly changed plaintiff's PIN
number to a gang code. Id. at 8.
8, 2017, defendant Kurtzenacker removed 45 music CD's
from plaintiff's cell. Although correctional directives
only permit inmates to have only 20 CD's, plaintiff had
been awarded 30 CD's in a prior settlement with the
security division of the department of correction and had
been allowed to have the 45 CD's since 2012. Plaintiff
was not issued a disciplinary charge for possessing the
CD's and was not given a receipt for the $800.00 value of
the CD's. Ibid.
10, 2017, plaintiff spoke to Martin and Colon regarding the
CD's. Colon stated that because plaintiff had more than
20 CD's, all of the CD's were considered contraband.
Martin stated that the CD's had been confiscated during a
shakedown. Plaintiff disputed the accuracy of Martin's
statement and questioned the lack of a disciplinary report or
receipt. Martin told plaintiff to “go write the
court.” Id. at 9.
to 28 U.S.C. § 1915A(a), 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. In
recent years, the Supreme Court has set forth a threshold
“plausibility” pleading standard for courts to
evaluate the adequacy of federal court complaints. A
complaint must allege enough facts-as distinct from legal
conclusions-that give rise to plausible grounds for relief.
See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Notwithstanding the rule of liberal
interpretation of a pro se complaint, a pro
se complaint may not survive dismissal if its factual
allegations do not meet the basic plausibility standard.
See, e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d
378, 387 (2d Cir. 2015).
I address whether plaintiff's allegation that Lesniewski
monitored plaintiff's attorney-client communication
plausibly states a constitutional violation. Plaintiff claims
that the monitoring constitutes a violation of the Fourth
Amendment. It is at least debatable whether such
non-consensual monitoring of a prisoner's telephone call
with legal counsel amounts to a violation of the Fourth
Amendment. See, e.g., Lonegan v. Hasty, 436
F.Supp.2d 419, 433-39 (E.D.N.Y. 2006); In re State Police
Litig., 888 F.Supp. 1235, 1255-56 (D. Conn. 1995);
but see United States v. Lentz, 419 F.Supp.2d 820,
827-29 (E.D. Va. 2005) (no attorney-client privilege if
prisoner knows conversation is being recorded). Accordingly,
plaintiff's Fourth Amendment claim will proceed against
further alleges that essentially all of the actions taken by
all named defendants violated the Eighth Amendment. The facts
alleged in the complaint do not sound in traditional Eighth
Amendment doctrine, such as excessive use of force or
deliberate indifference to serious medical needs. See,
e.g., Sands v. Mudano, 2017 WL 242466, at *2
(D. Conn. 2017). Rather, plaintiff's allegations more
fairly describe unfair treatment, not cruel or unusual
punishment. Accordingly, I conclude plaintiff has failed to
state a claim under the Eighth Amendment.
plaintiff does not expressly allege that defendants
retaliated against him in violation of his First Amendment
rights, the complaint alleges acts that-if true-might amount
to retaliation in violation of the First Amendment. To
establish a First Amendment retaliation claim, a plaintiff
must allege facts showing “(1) that the speech or
conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was