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Petitpas v. Martin

United States District Court, D. Connecticut

October 25, 2017

CHAD J. PETITPAS, Plaintiff,
v.
ROBERT MARTIN, et al., Defendants.

          INITIAL REVIEW ORDER

          Jeffrey Alker Meyer United States District Judge

         Plaintiff 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.

         Background

         The 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.

         On June 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.

         Defendant 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.

         Plaintiff 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.

         On July 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.

         On July 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.

         Discussion

         Pursuant 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).

         First, 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.[1] 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 Lesniewski.

         Plaintiff 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.

         Although 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 a ...


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