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Abrams v. Erfe

United States District Court, D. Connecticut

July 3, 2018

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.




         On 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.

         Nineteen 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.


         A. Standard for Leave to Amend - Rule 15, Fed. R. Civ. P.

         Pursuant 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. 12, 2014).

         In all 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).

         In the 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.

         B. Standard for Screening under Section 1915A

         Because 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).[1] 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)).[2] "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 unadorned, the-defendant-unlawfully-harmed-me 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).

         "Although 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).

         Because 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 litigants).

         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). Nor may the Court "invent factual allegations that [the plaintiff] has not pled." Id.

         C. Plaintiff's Amended Claims

         Although 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.

         To 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.[3] Plaintiff also requests declaratory relief as to each of his claims.

         The Court will review these claims to determine which, if any, may proceed as stating a claim upon which relief may be granted.

         1.Eighth Amendment Claim of Sexual Abuse

         In his 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.

         According 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.

         Abrams 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.

         On 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., ¶ 25.

         On 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.

         On 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., ¶ 42.

         Relying 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 ...

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