United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Courtney Green ("Plaintiff" or "Green"),
currently incarcerated at Osborn Correctional Institution
("Osborn") in Somers, Connecticut, has filed a
Second Amended Complaint pro se, naming as
Defendants Warden Edward Maldonado, Deputy Warden Gary
Wright, Dr. Johnny Wright, Correctional Officer Kopacz, and
the Connecticut Department of Correction ("DOC"),
(collectively, "Defendants"). Green contends
that Defendants have discriminated against him on the basis
of his disability and have subjected him to unconstitutional
conditions of confinement. Defendants move to dismiss
Plaintiff's Second Amended Complaint, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff
resists the motion. This Ruling resolves it.
factual allegations contained in Green's Second Amended
Complaint are recounted herein, recited in the light most
favorable to Green.
about October 21, 2016, Green was transferred to Osborn. Doc.
19 ¶ 1. He was housed in "E-Unit, 24 cell, "
which was in emergency lockdown. Id. After three
days, he was allowed to shower. Id. The shower is in
a small room with a grated steel door, and a window that
allows Green to see out and allows those in the corridor to
see in. Id. The floor of the shower appears to be
made of tile over a concrete floor; it is always very wet and
slippery. Id. There is nothing to hold onto in the
shower to keep one's balance and to prevent one from
falling. Id. To enter and exit the shower, Green has
to step over a three feet high wall.
middle of November 2016, Green sent an inmate request to
Counselor Supervisor Long, the Americans with Disabilities
Act ("ADA") coordinator at Osborn, seeking an
accommodation for the shower. Id. ¶ 2. On or
about December 1, 2016, Green was sent to Dr. Wright
regarding an unrelated issue; however, during the meeting
Green asked for assistance in obtaining accommodations in the
form of a transfer to a housing unit where he would not be
required to step over the wall to get in and out of the
shower. Id. ¶ 3. Dr. Wright said that he was
not aware that there was a wall in the shower, 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 then informed Green that he did
not meet the criteria or requirements for specialized housing
- where there are handicap-accessible showers - despite his
admission that Green had a physical impairment. Id.
¶ 4. Green asked about the requirements and Dr. Wright
responded that to obtain specialized housing, Green must be
in a wheelchair, using a cane or crutches, or missing a limb.
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 or record Green's inquiry, as it was informal.
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, contending that Long
violated 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 a 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 a CN 101902 form.
Id. ¶ 9.
about January 10, 2017, Green's ADA appeal was returned
by Administrative Remedies Coordinator Kopacz. Id.
¶ 10. The disposition was dated incorrectly by a year.
Id. The reason provided for the rejection of the
appeal was that "per A.D. 9.6, " an ADA decision
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 Green's appeal,
it was denied. Id. Kopacz signed Green's ADA
form explaining that he had exhausted his Administrative
Remedies even though Green had never received a formal
decision. Id. 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 Manning's tour of the B-Unit. Doc. 1
¶ 11. Green asked Manning if Kopacz was trained or
certified in ADA compliance and Manning answered that Kopacz
was not; only Captain Colon and Long are trained and
certified in ADA compliance. Id. On February 1,
2017, Green received the denial of his "CN 101902"
form. Id. ¶ 12. The form was denied because,
based on Dr. Wright's review, Green did not meet the
requirements for specialized housing. Id. ¶ 12.
Deputy Warden Wright and Richard Furey signed this
later part of February 2017, Green became aware of a December
30, 2016, email conversation between Furey, Elizabeth Mahar
and Dr. Wright regarding his ADA accommodations request.
Id. ¶ 13. In the email, Furey stated that Green
should be seen by a doctor to determine if he needs a
handicap-accessible 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, stating
that "I have already seen this inmate and he questioned
me in regard to ADA accommodation. I informed him that he did
not meet the criteria for ADA accommodations. This was not
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.
then contacted the U.S. Department of Justice, Civil Rights
Division to assist him in obtaining shower accommodations.
Id. ¶ 14. The assistant United States attorney
assigned to the case was informed by Colleen Gallagher, the
Director of Medical Services for DOC, that Green had a shower
pass that would allow him to shower in the
handicap-accessible showers available in the medical unit.
Id. Gallagher told the assistant United States
attorney that there were handrails installed in the shower in
the B-Block housing unit, where Green resided. Id.
This information was false. Id.
mid-March of 2017, Green wrote to Gallagher by inmate
request. Id. ¶ 15. He informed her that he did
not have a shower pass, nor were there handrails in the
shower in Green's housing unit. Id. Gallagher
visited Green at Osborne one week later. Id. She
toured Green's housing unit, and observed that there were
no handrails in the showers. Id. Gallagher said,
"wow they lied to me!" Id. Gallagher also
apologized to Green for the misinformation she had received
regarding the shower pass. Id. A different prisoner
with the same last name, who was blind, had been issued a
medical shower pass. Id. That prisoner had been
confused for Green. Id.
Gallagher and Green toured the shower room, Green explained
the nature of his injury. Id. ¶ 16. He told her
that he had been hit by a car in 2008, resulting in a broken
left leg, and requiring an ankle effusion that left Green
with very limited range of motion in his ankle; a limp; and
extreme stiffness. Id. Green's daily activities
are affected by his impediment, such as walking and stepping
over barriers. Id. Green demonstrated how he gets
into the shower when it is not crowded. Id. He sits
down on the wall and then must manually lift his left leg up
and over the wall. Id. He repeats this process to
exit the shower. Id. Green has been deprived of a
shower on a number of occasions. Id. When there is
overcrowding, such as after gym recreation, he cannot run to
the shower like the other inmates, due to his impairment.
Id. If Green wanted to shower on those days, he
would have to miss the gym recreation. Id.
and a half after that meeting, Green reached out again to
Gallagher by sending an inmate request. Id. ¶
17. Gallagher did not respond, but Green was then moved to
the J specialized housing unit. Id. The J-Unit is a
medical unit; the shower is handicap-accessible. Id.
Green is presently housed in the J-Unit and "is now
being allowed to participate in the benefits of programs or
services or activities from the CT Department of Correction
who receive federal funding for their public entities
programs." Id. ¶ 18.
STANDARD OF REVIEW
a motion to dismiss, the issue is 'whether the claimant
is entitled to offer evidence to support the
claims.'" Patane v. Clark, 508 F.3d 106,
111 (2d Cir. 2007) (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1984)). "To survive a motion to dismiss,
a 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) ("Iqbal") (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
("Twombly")). This pleading standard
creates a "two-pronged approach, " Iqbal,
556 U.S. at 679, based on "[t]wo working
principles." Id. at 678.
all factual allegations in the complaint must be accepted as
true and all reasonable inferences must be drawn in the favor
of the non-moving party. See id.; see also Gorman v.
Consolidated Edison Corp., 488 F.3d 586, 591-92 (2d Cir.
2007) (citation omitted). The presumption of truth does not
extend, however, to "legal conclusions" or
"[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements[.]"
Iqbal, 556 U.S. at 678. Second, "a complaint
that states a plausible claim for relief" will survive a
motion to dismiss and "[d]etermining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(quoting Iqbal, 556 U.S. at 679) (quotation marks
omitted). "Dismissal under Federal Rule of Civil
Procedure 12(b)(6) is appropriate when 'it is clear from
the face of the complaint, and matters of which the court may
take judicial notice, that the plaintiff's claims are
barred as a matter of law.'" Associated Fin.
Corp. v. Kleckner, 480 Fed.Appx. 89, 90 (2d Cir. 2012)
(quoting Conopco, Inc. v. Roll Int'l, 231 F.3d
82, 86 (2d Cir. 2000)).
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)). 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] suggest[ ].").
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).
permitted Plaintiff's § 1983 claims based on a
violation of the Eighth Amendment to proceed against the
named Defendants in their individual capacities. See
Doc. 10 at 12. The IRO also granted leave to Plaintiff to
file an Amended Complaint, to assert an ADA claim against the
Connecticut DOC. Pursuant to 28 U.S.C. § 1915A, The
Court dismissed any claims against the individual Defendants
in their individual capacities made pursuant to the ADA, and
any § 1983 claims based on the Equal Protection Clause.
Second Amended Complaint asserts seven causes of action.
Plaintiff alleges a section 1983 claim based on a violation
of the Eighth Amendment against Defendants Dr. Wright, Deputy
Warden Wright, Maldonado, and Kopacz; a claim against the DOC
pursuant to the ADA; and several claims against the
individual Defendants pursuant to the ADA. Plaintiff names
the Defendants in their individual and their official
capacities. Consistent with the directive in the IRO, the
Second Amended Complaint asserts several new factual
present motion seeks to dismiss the Second Amended Complaint
for failure to state a claim, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Defendants argue that
Plaintiff's Eighth Amendment section 1983 claims should
be dismissed, as Plaintiff has not alleged sufficient facts
to show that Defendants were deliberately indifferent to
Plaintiff's health and safety. Defendants argue that
without a plausible Eighth Amendment claim, Plaintiff's
ADA claims fail. Defendants also assert that Plaintiff has
failed to allege sufficient facts that would show that he
suffers from a disability, as required by 42 U.S.C. §
12102(2)(A). Finally, Defendants argue that they are entitled
to qualified immunity with respect to Plaintiff's Eighth
Amendment claims. The Court will address these arguments in