Fonck v. Semple

          INITIAL REVIEW ORDER

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         Preliminary Statement

         Plaintiff, Charles Christopher Fonck III (“Fonck”), currently confined at Osborn Correctional Institution in Somers, Connecticut, filed this complaint pro se under 42 U.S.C. § 1983 challenging his classification. The named defendants are Commissioner Scott Semple, Director of Offender Classification and Population Management David Maiga, Counselor Supervisor Erika Tugie, Warden Gary Wright, Correctional Officer Hubbard, Counselor Lugo and Correctional Officer Richardson. Fonck seeks damages as well as declaratory and injunctive relief. The complaint was received on August 2, 2018, and Fonck's motion to proceed in forma pauperis was granted on August 8, 2018. Fonck also has filed a motion for preliminary injunction or temporary restraining order.

         Standard of Review

         Pursuant to 28 U.S.C. § 1915A, where a prisoner seeks to proceed in forma pauperis, the Court must review the prisoner's civil complaint and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. Id. A complaint must include a “plain statement of the claim showing the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). 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[].” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Even a case which appears highly unlikely to succeed, may not be frivolous and should not be dismissed by way of the §1915A review. See, Nietzke v. Williams, 490 U.S. 319, 329 (1989). Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, supra. 678. Although, it is well-established that pro se complaints must be construed liberally, the complaint is still required to meet the standards of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

         Allegations

         Fonck is serving a three-year sentence for a non-violent crime. ECF No. 1 at 5, ¶¶ 12-13. Inmates convicted of non-violent crimes are eligible for educational and other programs that would facilitate re-entry into society. Id., ¶ 13. They also are eligible for Risk Reduction Earned Credit (“RREC”), and consideration for parole of community placement. Id., ¶ 14.

         Upon entry to Department of Correction (“DOC”) custody, inmates are classified based on both risk and needs scores. Id., ¶ 15. The risk score is determined after considering seven factors: (1) history of escape; (2) severity/violence of current offense; (3) history of violence; (4) length of sentence; (5) presence of pending charges, bond amounts, and/or detainers; (6) disciplinary history; and (7) security risk group membership. Id. at 5-6, ¶ 16. The needs score considers seven factors: (1) medical and health care, (2) mental health care, (3) education, (4) vocational training and work skills, (5) substance abuse treatment, (6) sex offender treatment, and (7) community resources. Id. at 6, ¶ 17. Departmental directive 9.2 provides that no inmate with a sex offender treatment needs score of 2 or greater can be assigned an overall risk score less than 3 without authorization from the commissioner or his designee. Id. ¶ 18. Upon entry into DOC custody, an Offender Accountability Plan is established for each inmate. Id. at 6-7, ¶ 20.

         On November 23, 2016, Counselor Lugo presented Fonck his Offender Accountability Plan. Correctional Officer Hubbard was present. Id. at 7, ¶ 21. The plan included a sex treatment referral. If Fonck did not participate in the required programs, he would forfeit RREC and the opportunity for supervised release or parole. Id. ¶ 22; see also id. at 128.

         Fonck refused to sign the plan, arguing that he had never been convicted of a sexual offense and had no history of being a sex offender. Id. ¶ 23. When he questioned the requirement that he participate in a sex offender treatment program, Counselor Lugo stated that he must have had some kind of sex offense. She threatened to make him “pay” if he refused to sign the form and made more work for her. Correctional Officer Hubbard laughed and told Fonck that “we make sure inmates with those kind of charges live comfortably.” Id. ¶ 24.

         A short time later, Counselor Lugo placed a copy of the plan on Fonck's bunk. The document was facing up and unfolded so other inmates could see it. Id. ¶ 25. Other inmates called Fonck derogatory names and gang members threatened harm if he did not “pay rent weekly, with commissary items.” Id. at 8, ¶ 27. When Fonck refused to pay, the gang members repeatedly tried to assault him in the bathroom or shower. Id. ¶ 28.

         Fonck received a disciplinary report for refusal of an institutional program. Id. ¶ 29. Correctional Officer Richardson presided at the November 29, 2016 disciplinary hearing. Id. ¶ 30. Fonck alleges that Correctional Officer Richardson did not permit him to present evidence or speak at the hearing. Id. ¶ 31. Fonck denies that he was removed from the hearing because he was disruptive as indicated in the Disciplinary Process Summary Report. Rather he alleges that Correctional Officer Richardson was unwilling to hear him and ordered Fonck to return to his housing unit. Id. at 8-9, ¶¶ 32-33. Correctional Officer Richardson did not schedule another hearing and did not provide Fonck notice of the findings thereby preventing Fonck from appealing the decision. Id. at 9, ¶ 35. When Fonck returned to his housing unit, he discovered that his foot locker had been opened and his possessions stolen. Id. ¶ 37.

         On December 5, 2016, Correctional Officer Hubbard approached Fonck in the dayroom and used insulting language. When Correctional Officer Hubbard ordered Fonck to retrieve his ID, Fonck declined. Correctional Officer Hubbard then told Fonck he would “get you out of here one way or another.” Id. at 9-10, ¶ 38. Correctional Officer Hubbard issued Fonck a disciplinary report for disobeying a direct order to which Fonck pleaded not guilty. Id. at 10, ¶ 39.

         The following day, Correctional Officer Rose, who is not a defendant, searched Fonck's cell and discovered two nails. Id. ¶¶ 40-41. Fonck was found guilty of several charges. He spent 21 days in punitive segregation pending a transfer to a higher security level. Id. ¶ 42.

         Fonck wrote to Director Maiga regarding his inability to appeal the November disciplinary findings and, what he termed the sex offender classification. Id. at 10-11, ¶ 44. Counselor Supervisor Tugie responded to the letter. She told Fonck that his classification was based on non-conviction criminal justice information showing a history of problematic sexual behavior; a sexual assault charge was nolled in connection with a 1998 conviction for assault. ...