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Green v. Maldonodo

United States District Court, D. Connecticut

June 6, 2018




         Plaintiff 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").[1] 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.


         The factual allegations contained in Green's Second Amended Complaint are recounted herein, recited in the light most favorable to Green.

         On or 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.

         In the 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.

         On or 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.

         On or 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.

         Shortly 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 declination. Id.

         In the 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.

         Green 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.

         In 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.

         As 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.

         A month 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.


         "On 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.

         First, 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)).

         With 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[ ].").

         Despite 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).


         The IRO 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.

         Plaintiff's 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 allegations.

         The 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 turn.

         A. Official ...

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