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.
RULING ON PLAINTIFF'S MOTION TO AMEND COMPLAINT
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES JUDGE
September 20, 2017, pro se Plaintiff David A.
Abrams, an inmate currently incarcerated at
Corrigan-Radgowski Correctional Center in Uncasville,
Connecticut ("Corrigan"), filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against various
prison officials of Cheshire Correctional Institution
("Cheshire C.I."), where he was previously housed.
Plaintiff alleged a number of constitutional and state law
violations against these defendants, who included: Warden
Scott Erfe, Captain John Watson, Maintenance Supervisor John
Doe, Counselor Trapp, and Counselor Supervisor Peterson. On
February 2, 2018, this Court issued its Initial Review Order
("IRO") dismissing all but two of Abrams's
claims: (1) the Fourth Amendment claim against Peterson for
invasion of privacy with respect to a strip search during
Abrams's transfer to the segregation unit on March 13,
2017; and (2) the Eighth Amendment claim against Watson for
acting with deliberate indifference to the hazardous
condition of black mold on the vent in Plaintiff's
segregation cell. See Abrams v. Erfe, No.
3:17-CV-1570 (CSH), 2018 WL 691714, at *19 (D. Conn. Feb. 2,
2018). The Court permitted those two claims to proceed
against Peterson and Watson in their individual capacities
for damages. Id.
days later, on February 21, 2018, Abrams filed his
"Motion for Leave to File an Amended Complaint"
[Doc. 11] with an attached proposed amended complaint.
Plaintiff states that through his amended complaint, he seeks
to: (1) replace the phrase "indecent exposure" with
"public indecency," as stated several times in the
complaint; and (2) allege sufficient facts to support the
claims dismissed by this Court in its IRO. Doc. 11, at 1-2
(¶¶ 1-3). For the following reasons, the Court will
GRANT the motion for leave to file an amended complaint and
accept the amended complaint. However, before accepting it,
the Court must review the amended complaint and dismiss any
claims which fail to state claims upon which relief may be
granted, 28 U.S.C. § 1915A.
Standard for Leave to Amend - Rule 15, Fed. R. Civ.
to Rule 15(a), Fed. R. Civ. P., a plaintiff may amend his
complaint once as a matter of course within twenty-one days
after service of the complaint or within twenty-one days
after service of a responsive pleading (i.e., answer
or motion to dismiss) or of a Rule 12(b), (e), or (f) motion,
whichever is earlier. See Fed. R. Civ. P.
15(a)(1)(A) and (B). See also, e.g., Baines v.
Pillai, No. 3:16-CV-01374 (CSH), 2017 WL 1375168, at *1
(D. Conn. Apr. 10, 2017); Taurus B, LLC v. Esserman,
No. 3:14-CV-715 CSH, 2014 WL 4494398, at *1 (D. Conn. Sept.
other cases, the plaintiff may amend his complaint only with
"the opposing party's written consent or the
court's leave," which should be "freely give[n]
when justice so requires." Fed.R.Civ.P. 15(a)(2).
"In the absence of any apparent or declared reason -
such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of the allowance of the amendment,
futility of the amendment, etc. - the leave should, as the
rules require, be 'freely given.'" Foman v.
Davis, 371 U.S. 178, 182 (1962) (discussing Rule 15(a)).
"This relaxed standard applies with particular force to
pro se litigants." Pangburn v.
Culbertson, 200 F.3d 65, 70 (2d Cir. 1999). "A
pro se complaint is to be read liberally, and should
not be dismissed without granting leave to amend at least
once when such a reading gives any indication that a
valid claim might be stated." Id.
(emphasis in original; citation, internal quotation marks,
and brackets omitted).
case at bar, Abrams filed his motion for leave to amend and
his amended complaint within twenty-one days after service of
his initial complaint. Therefore, Abrams is entitled to amend
his complaint once as a matter of right under Rule 15(a)(1).
The Court will thus grant the motion to amend and accept the
amended complaint. The remaining issue the Court must resolve
is which claims may now proceed under 28 U.S.C. § 1915A.
Standard for Screening under Section 1915A
the amended complaint will become the operative complaint in
this action, the Court must perform its mandatory screening
of the claims under 28 U.S.C. § 1915A to determine
whether they state claims upon which relief may be granted.
In its IRO, the Court set forth the applicable standard of
review for analyzing a pro se prisoner's civil
rights complaint under this statute. 2018 WL 691714, at *1-2
. Specifically, pursuant to § 1915A, the Court must
review the 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). Highly detailed allegations
are not required, but 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).
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). Therefore, 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)).
"Threadbare 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).
Plaintiff is a pro se litigant, his
"[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
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 pled." Id.
Plaintiff's Amended Claims
Abrams fails to designate which of the previously dismissed
claims he seeks to reinstate, he notes that he has
supplemented his allegations from page 13, paragraph 64, to
the end of page 21. Doc. 11, at 1-2. Based on the Court's
review of his amended complaint, two claims Plaintiff has
attempted to supplement, in an effort to reinstate them into
this action, are his Eighth Amendment claims against Trapp:
sexual abuse and retaliation. As to defendant Trapp, he also
now attempts to state a tort claim for fraud against her for
"falsely accusing him of exposing himself to her."
Do. 11-1, ¶ 102. In addition, Plaintiff seeks to expand
his Fourth Amendment claim regarding an unreasonably
"intrusive strip search" to challenge the policy
itself as unreasonable. Id., ¶¶ 75-85.
clarify, the entire list of claims Plaintiff now attempts to
assert in his amended complaint include: sexual abuse or
harassment by Trapp in violation of the Eighth Amendment;
Fourth and Eighth Amendment claims against Peterson, Watson,
and Erfe for an unreasonably intrusive strip search conducted
on March 13, 2017; retaliation and fraud against Trapp;
Fourth Amendment claim that the "strip search"
policy at Cheshire C.I. is generally unconstitutional; Eighth
Amendment claim against Watson and Erfe for acting with
deliberate indifference to the hazardous condition of black
mold on the vent in Plaintiff's segregation cell; and
negligence against Maintenance Supervisor Doe for failing to
maintain a hazard free living condition of confinement
regarding the black mold on Plaintiff's cell vent in
segregation. Plaintiff also requests declaratory relief
as to each of his claims.
Court will review these claims to determine which, if any,
may proceed as stating a claim upon which relief may be
Amendment Claim of Sexual Abuse
initial complaint, Abrams attempted to state an Eighth
Amendment sexual abuse claim against Trapp. In his Amended
Complaint, he has once again pled such a claim with the
following allegations. In January 2017, while he was housed
at the Cheshire Correctional Institution ("C.I."),
he was employed to clean showers. Doc. 11-1, ¶ 10.
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 tour." Id.
to Plaintiff, over the next few days, Trapp stopped by
Abrams's 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 washup 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 "[d]ue to her strong[, ] masculine . . .
features," 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 his 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 so
"continued to 'manscape.'" Id.,
on the Second Circuit's decisions in Boddie v.
Schneider, 105 F.3d 857, 861 (2d Cir. 1997), and
Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015),
the Court previously dismissed Abrams's Eighth Amendment
claim against Trapp because the facts alleged did not rise to
the level of severity to create a constitutional harm. 2018
WL 691714, at *5-7. "In order to determine whether
alleged sexual abuse rises to the level of an Eighth
Amendment violation, one must examine ...