United States District Court, D. Connecticut
DAVID A. ABRAMS, No. 241224, a/k/a ABRAHAMS, Plaintiff,
WARDEN SCOTT ERFE, CAPTAIN JOHN WATSON, MAINTENANCE SUPERVISOR JOHN DOE, AND COUNSELOR TRAPP, sued in their individual and official capacity; and COUNSELOR SUPERVISOR PETERSON, sued in her individual capacity, Defendants.
INITIAL REVIEW ORDER
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
plaintiff, David Abrams, pro se and currently
incarcerated at Corrigan-Radgowski Correctional Institution
in Uncasville, Connecticut, has filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against Warden
Scott Erfe, Captain John Watson, Maintenance Supervisor John
Doe, Counselor Trapp, and Counselor Supervisor Peterson of
the Cheshire Correctional Institution ("Cheshire
C.I."), where he was previously housed. Throughout his
complaint, Plaintiff alleges various constitutional and state
law violations. Abrams is suing Peterson in her individual
capacity and all other defendants in their individual and
official capacities. He is seeking monetary and declaratory
relief from all defendants and an injunction against Erfe.
respect to procedural history, Magistrate Judge Garfinkel
granted Abrams's motion to proceed in forma
pauperis on September 22, 2017. See Doc. 6. The
Court now reviews Abrams's Complaint to determine whether
his claims are "frivolous" or may proceed under 28
U.S.C. § 1915A. For the following reasons, the Court
dismisses his complaint in part.
STANDARD OF REVIEW
28 U.S.C. § 1915A, the Court must review a
prisoner's civil complaint and dismiss any portion that
"(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such relief."
See 28 U.S.C. § 1915A(b)(1)-(2). Although
highly detailed allegations are not required, the complaint
"must contain sufficient factual matter, accepted as
true, to 'state a claim that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S 544, 570 (2007)). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678. The complaint must provide "more than the
accusation." Id. "A pleading that offers
'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not
do.'" Id. (quoting Twombly, 550
U.S. at 555).
a complaint states a plausible claim for relief will
[ultimately] . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense." Id. at 663-64. When
"well-pleaded factual allegations" are present,
"a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief." Id. at 679. Factual disputes do not
factor into a plausibility analysis under Iqbal and
all allegations contained in the complaint are assumed to be
true, this tenet is `inapplicable to legal
conclusions.'" LaMagna v. Brown, 474
Fed.Appx. 788, 789 (2d Cir.2012) (quoting Iqbal, 556
U.S. at 678). See also Amaker v. New York State Dept. of
Corr. Servs., 435 Fed.Appx. 52, 54 (2d Cir.2011) (same).
Accordingly, the Court is not "bound to accept
conclusory allegations or legal conclusions masquerading as
factual conclusions." Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 104 (2d Cir.2011) (quoting Rolon
v. Henneman, 517 F.3d 140, 149 (2d Cir.2008) (internal
quotation marks omitted)). Consequently, "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555).
respect to pro se litigants, it is well-established
that "[p]ro se submissions are
reviewed with special solicitude, and 'must be construed
liberally and interpreted to raise the strongest arguments
that they suggest.'" Matheson v. Deutsche Bank
Nat'l Tr. Co., 706 Fed.Appx. 24, 26 (2d Cir. 2017)
(quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)(per curiam)). See also Sykes
v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)
(same); Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d
Cir. 2010) (discussing special rules of solicitude for
pro se litigants); Boykin v. KeyCorp., 521
F.3d 202, 214 (2d Cir. 2008) ("A document filed pro
se is to be liberally construed and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.") (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007)); Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (Where the
plaintiff proceeds pro se, a court is "obliged
to construe his pleadings liberally.") (quoting
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007) ("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]
being subject to liberal interpretation, a pro se
plaintiff's complaint still must "state a claim to
relief that is plausible on its face." Mancuso v.
Hynes, 379 Fed.Appx. 60, 61 (2d Cir. 2010) (quoting
Iqbal, 556 U.S. at 678). Therefore, even in a
pro se case, "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) (citation and
internal quotation marks omitted). Nor may the Court
"invent factual allegations" that the plaintiff has
not pleaded. Id.
January 2017, Abrams was housed at Cheshire C.I. in Cheshire,
Connecticut. Doc. 1 (Complaint), ¶10. He was employed by
the facility to clean the showers, for which he received
twenty-one dollars per month. Id. Counselor Trapp (a
female) was the inmate counselor for Unit 3, where Abrams
resided. Id., ¶¶11-12. In February 2017,
Abrams asked Trapp for "state soap and envelopes . . .
to which he [was] not entitled . . . because he was
employed." Id., ¶13. Trapp allegedly
smiled at Abrams and said, "See, life can be made easy
for you in here." Id., ¶15. She handed
Abrams four bars of soap and four pre-stamped envelopes.
Id. Abrams replied, "Thanks, I appreciate
you!" Id. ¶16. Trapp allegedly responded
by saying, "Do you really? We'll see on my
to Plaintiff, over the next few days, Trapp stopped by
Abrams' cell door between 12:30 p.m. and 1:30 p.m. and
watched him work out while wearing only his gym shorts.
Id., ¶17. On these occasions, Trapp allegedly
smiled at Abrams and gave him a "thumbs-up" signal.
Id. On four different occasions over the next couple
of weeks, Trapp "would stop by [Abrams's] cell while
his cell window was partially covered for privacy" and
watch Abrams "urinate, masturbate, and wash up while [he
was] fully naked" after working out. Id.,
¶18. She would allegedly smile at Abrams for three to
five seconds and then continue on her tour. Id.
During this time, Trapp gave Abrams multiple bars of soap and
envelopes, which Abrams sold to other inmates in the unit for
profit. Id. ¶20.
alleges that he found Trapp to be "extremely
unattractive" so he was "an unwilling participant
in her inappropriate conduct." Id., ¶21.
Nevertheless, he did not want to report her out of "fear
of embarrassment, ridicule, " and retaliation, or as he
describes, "what Trapp could do to him and for
him." Id., ¶22.
numerous occasions, Abrams allegedly "went to see Trapp
for a printout of his inmate account or to get soap and
envelopes." Id., ¶24. During these times,
Trapp would allegedly pose provocatively, "bend[ing]
over at the waist, " "spread[ing] her legs while
seated in front of him, " and/or "lean[ing] forward
with her loose-fitted, low-cut blouse" exposing her
cleavage. Id., ¶¶ 24-26. Abrams states
that he "would laugh to himself" because he
"found her unattractive" in that she was
"built like a 12 year old girl." Id.,
March 3, 2017, Abrams argued with Trapp "over his
placement at the bottom of the list for industry jobs that
pay up to $150 monthly." Id., ¶27.
Afterward, Abrams stopped communicating with Trapp; and Trapp
no longer stopped at Abrams's cell door during her tour
of the unit. Id., ¶¶ 27-28.
March 13, 2017, administrators placed Cheshire on
"modified lockdown" because Governor Malloy was
touring the facility. Id., ¶29. During this
time, no inmates were permitted in any area outside of their
cells except for those inmates who worked in the
facility's industry unit, which included Abrams's
cellmate. Id., ¶¶ 30, 33. Sometime between
11:30 a.m. and 11:45 a.m. on that date, Abrams alleges he
partially covered his cell window for privacy. Id.,
¶ 35. He decided to take advantage of the lockdown to do
personal grooming ("groom his pubic area" or
perform "manscaping, " as he terms it) while naked.
Id. He retrieved his beard trimmer, removed all of
his clothing, and began this task "over his toilet"
in his cell. Id., ¶¶ 37-38. While trimming
his hair, he saw the shadow of a figure move in front of the
cell window and then walk away. Id., ¶¶
40-41. Abrams could not identify the person at the window.
Id., ¶ 42.
ten minutes later, Abrams's cellmate returned from his
industry job early. Id., ¶43. He refused to
enter the cell because Abrams had partially covered the
window. Id. Correction Officer Lapointe instructed
the cellmate to enter the cell and "lock up."
Id., ¶44. The cellmate told Lapointe to
"calm down" because Abrams was using the bathroom.
Id. The cellmate eventually entered the cell as
Abrams was cleaning the toilet area. Id., ¶45.
minutes after the cellmate entered the cell, Counselor
Supervisor Peterson and four other correction officers
entered the cell to take Abrams to a segregation unit pending
an investigation into a disciplinary report. Id.,
¶¶45-46. Abrams later learned that Trapp had issued
a disciplinary report against him for intentionally exposing
himself to her. Id., ¶¶47-48. See also
id., at 30 ("Disciplinary Report, " regarding
incident on 3/13/2017). While en route to the segregation unit,
Peterson and/or the other officers ordered Abrams to strip,
bend at the waist, and spread his legs "in front of
Peterson (a female) and other officers." Id.,
March 13, 2017, while in segregation, Abrams informed
Sergeant Duquette that Trapp had sexually harassed him on
previous occasions. Id., ¶50. Thereafter, on
March 23, 2017, Abrams wrote a letter to the Connecticut
State Police requesting that charges be filed against Trapp
for sexual harassment and for filing a false disciplinary
report. Id., ¶52. Abrams also filed multiple
grievances against Trapp. Id.
to Plaintiff, Captain Watson had previously implemented a new
policy at Cheshire's segregation unit, mandating that
inmate mail be sent out only if the inmate completed a
special request form so that postage costs could be deducted
from his account. Id., ¶53. Abrams did not
learn of this new policy until after he had mailed his March
23 letter to the state police. Id. His letter was
"never returned to him, nor was postage deducted from
his prison account." Id. He contacted the mail
room to see if his letter was, in fact, sent out but did not
receive a response. Id., ¶54. Abrams has
"concluded" that Cheshire staff intercepted his
letter because of the allegations contained in it and
"because [such interception] is known to happen when an
inmate in segregation tries to contact outside
intervention." Id., ¶56.
in segregation, Abrams informed Captain Watson about black
mold on the vent in his cell. Id., ¶57. Watson
allegedly replied, "It comes off with wet tissue."
Id. Abrams also submitted a written request to speak
to someone who handles cases under the Prison Rape
Elimination Act ("PREA"). Id., ¶61.
Captain Watson allegedly responded by claiming that
"plaintiff's allegations don't qualify for
to Abrams, his disciplinary hearing was postponed twice, and
the hearing officers did not provide him with an
"advocate" as promised. Id., ¶58. On
March 29, 2017, Hearing Officer King allegedly found Abrams
"guilty [of indecent exposure] based on evidence, the
plaintiff's testimony, and on [King's] position that
'an individual can be guilty of indecent exposure
regardless if it is intentional or
not.'" Id., ¶59. Abrams spent a
total of seventeen (17) days in segregation "after a
hearing with sanctions in which [ten] (10) days good time was
taken from him. Id., ¶60.
March 30, 2017, Abrams contacted the PREA resource center and
spoke with a female operator. Id.,
¶¶61-62. The operator told Abrams that his claims
against Trapp did not constitute sexual harassment, but she
disagreed with Officer King's assessment that an
individual can be found guilty of indecent exposure if the
act was unintentional. Id., ¶62.
has raised multiple constitutional and state law claims
against the named defendants. The Court will address the
viability of each claim in turn.
claims that Trapp violated his Eighth Amendment right to be
free from cruel and unusual punishment by sexually harassing
him on numerous occasions. Doc. 1, ¶¶64-68. The
Eighth Amendment sets constitutional boundaries on the
conditions of imprisonment. "The 'unnecessary and
wanton infliction of pain' on a prisoner constitutes
cruel and unusual punishment in violation of the Eighth
Amendment." Boddie v. Schnieder, 105 F.3d 857,
861 (2d Cir. 1997) (citing Whitley v. Albers, 475
U.S. 312, 319 (1986)).
state an Eighth Amendment claim, "a prisoner must allege
two elements, one subjective and one objective."
Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015).
First, the prisoner must allege that "the defendant
acted with a subjectively 'sufficiently culpable state of
mind.'" Id. (quoting Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). Second, the conduct
alleged must be "objectively 'harmful enough' or
'sufficiently serious' to reach constitutional
dimensions." Id. (quoting Hudson, 503
U.S. at 8). See also Boddie, 105 F.3d at 861
("Because sexual abuse by a corrections officer may
constitute serious harm inflicted by an officer with a
sufficiently culpable state of mind, allegations of such
abuse are cognizable as Eighth Amendment claims.").
as to objective harm, "[a]nalysis of the objective prong
is context specific, " Crawford, 796 F.3d at
256 (citation and internal quotation marks omitted).
"Sexual abuse may violate contemporary standards of
decency and can cause severe physical and psychological
harm." Boddie, 105 F.3d at 861. Therefore,
"severe or repetitive sexual abuse of an inmate by a
prison officer can be 'objectively, sufficiently
serious' enough to constitute an Eighth Amendment
violation." Id. Moreover, "sexual abuse of
a prisoner by a corrections officer has no legitimate
penological purpose." Id.
as to subjective state of mind, "[w]here no legitimate
law enforcement or penological purpose can be inferred from
the defendant's alleged conduct, the abuse itself may, in
some circumstances, be sufficient evidence of a culpable
state of mind." Id. "Accordingly,
allegations of sexual abuse may meet both the subjective and
the objective elements of the constitutional test, thereby
stating an Eighth Amendment claim under Section 1983."
every malevolent touch by a prison guard gives rise to a
federal cause of action, " but the Eighth Amendment is
nevertheless violated by "conduct that is repugnant to
the conscience of mankind." Crawford, 796 F.3d
at 256 (citation and internal quotation marks omitted).
Actions are deemed "repugnant to the conscience of
mankind" if they are "incompatible with evolving
standards of decency" or involve "the unnecessary
and wanton infliction of pain." Id. (citation
order to determine whether alleged sexual abuse rises to the
level of an Eighth Amendment violation, one must examine the
particular facts set forth in the claim. In Boddie,
the Second Circuit held that the prisoner "failed to
state an Eighth Amendment claim after a female corrections
officer made a pass at an him, squeezed his hand, touched his
penis, called him a 'sexy black devil, ' and bumped
into him 'with her whole body vagina against
penis.'" Crawford, 796 F.3d at 257
(discussing Boddie, 105 F.3d at 859-60). "We
concluded [in Boddie] that no single incident was
sufficiently serious and that the series of incidents were
not 'cumulatively egregious' enough to reach
constitutional dimensions." Id. (citing
Boddie, 105 F.3d at 861).
Crawford, the Second Circuit expanded the standard
for sexual abuse of prisoners, holding that "[a]
corrections officer's intentional contact with an
inmate's genitalia or other intimate area, which serves
no penological purpose and is undertaken with the intent to
gratify the officer's sexual desire or humiliate the
inmate, violates the Eighth Amendment." 796 F.3d at 257.
"[T]he principal inquiry is whether the contact is
incidental to legitimate official duties, such as a
justifiable pat frisk or strip search, or by contrast whether
it is undertaken to arouse or gratify the officer or
humiliate the inmate." Id. at 257-58.
Concluding that the latter had occurred - when Corrections
Officer Prindle "fondled" and "squeezed"
the penis of prisoner Corley and thereafter "fondled
[inmate] Crawford's penis and roamed his hands down
Crawford's thigh, " with no connection to "any
legitimate duties - the Second Circuit held that such
"unjustified conduct . . . [was] unquestionably
repugnant to the conscience of mankind and therefore
violate[d] the Eighth Amendment. Id. at 258
(citation and internal quotation marks omitted).
holding, the Crawford court confirmed that the
"standard set forth in Boddie . . . remains the
same today[;] [b]ut in determining the application of that
standard, the Eighth Amendment requires courts to 'look
beyond historical conceptions to the evolving standards of
decency that mark the progress of a maturing
society.'" Id. at 259 (quoting Graham
v. Florida, 560 U.S. 48, 58 (2010)). For example, in the
intervening years since Boddie, "all but two
states [have] criminalize[d] sexual conduct between inmates
and corrections officers, " so that these
"legislative enactments are the 'clearest and most
reliable objective evidence of contemporary
values.'" Id. at 260 (quoting Atkins v.
Virginia, 536 U.S. 304, 315 (2002)). Such consistency in
the direction of change in the law reflects society's
"deep moral indignation" regarding sexual abuse of
prisoners. Id. (citation and internal quotation
the evolving standards of decency regarding sexual abuse, the
facts alleged by Abrams do not rise to the level of being
"repugnant to the conscience of mankind" so do not
constitute a constitutional harm under either Boddie
or Crawford. Unlike in Crawford, there has
been no alleged sexually suggestive or any other kind of
physical contact between Trapp and the Plaintiff. Rather,
Abrams alleges that Trapp gave him soap and envelopes,
watched him work out in his gym shorts, observed him through
his cell window, smiled at him during times of partial
privacy (as he carried out acts of hygiene), and on at least
two occasions, posed in allegedly seductive or provocative
manners in Abrams's presence. None of these incidents was
"severe" enough to be deemed "objectively,
sufficiently serious." In particular, Plaintiff has
alleged that Trapp watched him work out while wearing only
his gym shorts. Doc. 1, ¶17. At such times, she
allegedly smiled at him, giving the "thumbs-up"
signal of approval. Id. Trapp also allegedly
"would stop by [Abrams's] cell while his cell window
was partially covered for privacy" and watch him
"urinate, masturbate, and wash up while [he was] fully
naked" after working out. Id., ¶18.
According to Plaintiff, on one occasion, a shadow went by his
cell window when he was "manscaping, " standing
naked before his toilet, but he was unable to identify the
shadow. Id., ¶¶ 35-42.
addition, Plaintiff claims that Trapp posed suggestively in
front of him on a number of occasions - bending over with her
back to Plaintiff, sitting with her legs apart, and exposing
her cleavage by wearing loose, low-cut blouse. In
Plaintiff's words, Trapp would "bend over at the
waist, " "spread her legs while seated in front of
him, " and/or "lean forward with her loose-fitted,
low-cut blouse" exposing her cleavage. Id.,
¶¶ 24-26. At such times, rather than being
traumatized, humiliated or sexually aroused by such conduct,
Abrams states that he "would laugh to himself"
because he "found her unattractive" due to her
"masculine, Caitlin Jenner-like features" and
childlike build. Id., ¶¶ 20, 25.
the facts liberally, accepting Plaintiff's allegations as
true, the Court finds that Trapp's actions - viewing
Abrams in his cell during her rounds and posing provocatively
- do not rise to the level of sexual abuse. Granted, such
actions might potentially be viewed as unprofessional,
inappropriate, and/or offensive. However, being observed by a
guard during rounds while an inmate is in semi-privacy,
receiving a thumbs up or a smile, and/or being forced to
witness a comical display of provocative poses (causing
admitted laughter, rather than suffering) are not events
which are "objectively harmful enough or sufficiently
serious" to reach constitutional
dimensions. Crawford, 796 F.3d at 257 See
also Boddie, 105 F.3d at 861.
constitute a constitutional violation, there must be
"severe or repetitive sexual abuse" which is
"cumulatively egregious, " Boddie, 105
F.3d at 861, or conduct which is "repugnant to the
conscience of mankind" such that it is
"incompatible with evolving standards of decency, "
Crawford, 796 F.3d at 257. See also Keaton v.
Ponte, No. 16 CIV. 3063 (KPF), 2017 WL 3382314, at *10
(S.D.N.Y. Aug. 4, 2017) (dismissing prisoner's Eighth
Amendment claims of sexual abuse against female corrections
officers where there was no "illicit physical contact
between a corrections officer and an inmate" and the
corrections officers' alleged "verbal harassment,
" encouraging the inmate to use the shower, watching him
shower, and making sexual gestures with lipsticks and
tongues, "without more, [were] not actionable" as
cruel and unusual punishment in violation of the Eight
a valid penological interest in the officer's conduct
militates against a finding of sexual abuse. See, e.g.,
Grant v. Norfleett, No. 3:17-CV-328 (AWT), 2017 WL
1902150, at *3 (D. Conn. May 9, 2017) (Plaintiff's
complaint failed to state a plausible Eight Amendment sexual
abuse claim against defendants who allegedly subjected him to
a body cavity search "for their own sexual
gratification" - "watch[ing] him like a piece of
meat" - where search occurred during prisoner's
transfer to a restrictive housing unit after he engaged in a
fight with his cellmate). Trapp allegedly made her
observations of Abrams during her rounds as a guard at
Corrigan. Observing prisoners through their cell windows is
incidental to one's official and necessary duties as a
Plaintiff has alleged no "cumulatively egregious"
or sufficiently "repugnant" conduct by Trapp in
this case. Accordingly, Plaintiff's allegations
fail to state a plausible claim against Trapp for Eighth