Whipper v. Erfe

          INITIAL REVIEW OF AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915A

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE

         Plaintiff Alphonso Whipper is a prisoner in the custody of the Connecticut Department of Correction at Cheshire Correctional Institution. Proceeding pro se and in forma pauperis, on February 27, 2018, he filed a civil complaint under 42 U.S.C. § 1983 against seven prison officials: Warden Scott Erfe, District Administrator Angel Quiros, Deputy Warden Amanda Hannah, Captain James Watson, Administrative Remedies Coordinator Selena Rious, and Officers Anna Verdura and James Wright. Whipper claimed that the defendants unconstitutionally retaliated against him for pleading not guilty to a disciplinary charge by placing him in administrative segregation. After an initial review, I dismissed the claims against defendants Erfe, Hannah, Quiros, and Rious but permitted the retaliation claim to proceed against Verdura, Wright, and Watson. Doc. #9 at 7-9; see Whipper v. Erfe, 2018 WL 2390142, at *5 (D. Conn. 2018).

         Whipper moved for leave to file an amended complaint to cure the initial complaint's factual defects, Doc. #13, and I granted the motion, Doc. #14. I ordered him to file an amended complaint incorporating all the changes described in his motion. Doc. #15. Whipper has now filed an amended complaint, Doc. #16, which I will review pursuant to 28 U.S.C. § 1915A.

         Background

         The following facts are alleged in the amended complaint and are accepted as true only for purposes of this ruling. On November 21, 2016, Whipper was summoned to the lieutenants' office and informed by Lieutenant Correia of allegations that he was involved in a physical altercation with another inmate, Edwin Snelgrove. Doc. #16 at 3-4 (¶¶ 12-15). He was also informed that, as a result of the allegations, he was being placed in restrictive housing. Id. at 3 (¶ 14). Whipper denied that he had been involved in such an altercation. Id. at 4 (¶ 16).

         Officer Wright, who had escorted Whipper to the office, instructed Whipper to remove his shirt for photos, and he complied and again denied being involved in the fight. Id. at 3-4 (¶¶ 13, 17-20). Wright requested that Whipper turn his right shoulder toward the camera, and Whipper stated that he believed Wright was fabricating evidence. Id. at 4 (¶ 18). Wright replied, “I know you were in a fight last week [and] you're not getting away with it.” Ibid. (¶ 19). Whipper indicated that he had played basketball twice in the previous week and that any marks on his body likely resulted from his athletic activities. Ibid. (¶ 20). Lieutenant Correia proceeded to place Whipper in a restrictive housing unit. Ibid. (¶ 21).

         Whipper was asked to write a statement about the alleged physical altercation. Ibid. (¶ 23). He complied and wrote that he had no knowledge of the incident. To Whipper's knowledge, both he and Snelgrove were placed in restrictive housing on administrative detention status pending the investigation. Id. at 4-5 (¶ 24).

         On November 22, 2016, Whipper met with disciplinary report investigator Officer Cossette. See Id. at 5 (¶ 25). Officers Verdura and Perrachio were also present at the meeting. Ibid. (¶ 26). Cossette expressed surprise that Whipper wanted to meet with him. Ibid. (¶ 27). When Cossette inquired about the altercation with Snelgrove, Whipper again denied any involvement. Ibid. Cossette stated that both Whipper and Snelgrove sustained eye injuries. Ibid. (¶ 28). Whipper countered that his eyes always appear the way they were shown in the photographs, and he requested that Cossette retrieve his ID photo, which he believed would confirm his claim about the ordinary appearance of his eyes. Ibid. (¶29).

         Verdura told Whipper that they knew about the fight and that Warden Erfe was upset that no officer had reported the fight or Snelgrove's injuries. Ibid. (¶¶ 30-31). Whipper stated that there were no reports because the fight had never occurred, and that it was unusual for wardens to investigate allegations of fights. Ibid. Whipper then informed Verdura that he and Erfe had a “tense relationship based on past grievances and complaints made by [him] against unfair and harsh restrictions . . . implemented by . . . Erfe spanning two prisons.” Id. at 5-6 (¶ 32). Peracchio stated that regardless of whether there had in fact been a fight, Whipper would remain in administrative detention for 15 days. Id. at 6 (¶ 33). Verdura then showed Whipper a picture of Snelgrove's alleged eye injury, which Whipper believes was inconsistent with a punch to the eye area. Id. at 5-6 (¶¶ 30-34).

         On November 28, 2016, Whipper received a disciplinary report from Verdura for fighting. Id. at 6 (¶ 35). The report contained inaccurate information, including: (1) a statement that the investigation commenced on November 16, 2016, and (2) a photo that allegedly depicts Whipper's eye injury but in fact depicts his typical appearance. Ibid. (¶ 36). Snelgrove also received a disciplinary report for fighting, and both inmates pleaded not guilty. Ibid. (¶ 37).

         On December 5, 2016, Whipper received a summary report dismissing the disciplinary report for a “lack of evidence.” Ibid. (¶ 38). Snelgrove received the same dismissal notification. Despite the dismissal, neither inmate was released from his restrictive housing cell. Ibid. (¶¶ 38- 39).

         On December 6, 2016, Captain Watson summoned Whipper to his office. Id. at 6-7 (¶ 40). When Whipper arrived, Watson told him that Erfe wanted Whipper to sign a waiver in order to be sent to Alaska. Ibid. Upon seeing Whipper's reaction, he asked that Whipper and Snelgrove submit written statements in accordance with protocol expressing that they were not a threat to one another, and Whipper complied. Ibid. at 7 (¶ 40). After completing his statement, Snelgrove was released back into the general population, but Whipper was kept in restrictive housing and given a new administrative detention status because a profile request had been submitted and was “pending investigation.” Ibid. (¶ 41). Whipper could not find any prison policy establishing or permitting the use of this status. Ibid.

         Whipper complained to Watson that it was unfair to release Snelgrove back into the general population while keeping him in restrictive housing. Ibid. (¶ 42). Watson explained that Whipper had to remain in segregated housing due to the premature submission of the “profile request” that was based on the assumption that both prisoners were going to plead guilty. Ibid. (¶ 43). To correct this error, a new profile request had to be submitted while Whipper remained in restrictive housing. Ibid. Whipper explained to Watson that he would lose a semester of the college program in which he was enrolled, but Watson dismissed his complaint, stating, “Next time, keep your hands to yourself.” Ibid. (¶ 44).

         While in restrictive housing, Whipper submitted multiple written requests to various senior officials at Cheshire, including Erfe, Deputy Warden Hannah, and Grievance Coordinator Rious. Ibid. (¶ 45). He also informed Watson that he intended to pursue litigation if his placement issue was not resolved. Ibid.

         On December 12, 2016, Whipper asked Watson why he was still being held in restrictive housing, and Watson responded that “his paperwork had been lost in the shuffle.” Id. at 7-8 (¶ 46). That same day, Whipper submitted a grievance form for “staff misconduct.” Id. at 8 (¶ 47).

         During the week of December 19, 2016, Whipper again asked Watson why he had not been released back into general population. Ibid. (¶ 48). Watson told Whipper, “I'm surprised that you're handling this so well, but you're still not getting out of here just because you've been down here so long.” Ibid. Watson further stated that he had been e-mailing the classification officer regarding the matter but had not yet received a response. Ibid. (¶ 49). That same week, Whipper asked Hannah why she had been ignoring his situation. Ibid. (¶ 50). Hannah replied, “Until you submit something to me directly, I cannot get involved.” Ibid. She told Whipper that face-to-face interactions and written requests would not suffice, and that Whipper had to write her a personal letter, specifying the details. Ibid. Whipper complied but informed Hannah of his intention to litigate what he believed to be an arbitrary application of the Department of Correction's Administrative Directives. Ibid. On December 23, he wrote a five-page personal letter to Hannah. Ibid. (¶ 51).

         On December 30, 2016, Whipper was released to the general population after having spent 39 days in restrictive housing. Ibid. (¶ 52). Whipper alleges that this prolonged placement in housing was retaliation for his decision to plead not guilty to the disciplinary report. Id. at 8-9 (¶ 53). He further “believes” that, based on his past history with Erfe and Erfe's unusual investigatory role, it was ...