United States District Court, D. Connecticut
INITIAL REVIEW ORDER
A. DOOLEY UNITED STATES DISTRICT JUDGE
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
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).
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.
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.
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.
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.
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. ¶
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. ¶
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.
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.
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. ...