United States District Court, D. Connecticut
RULING RE: MOTION TO AMEND COMPLAINT (DOC. NO.
C. HALL, UNITED STATES DISTRICT JUDGE
November 2, 2018, the plaintiff, Wayne Rogers
(“Rogers”), an inmate currently confined at the
Corrigan-Radgowski Correctional Center (“CRCI”)
in Uncasville, Connecticut, filed a complaint pro se
pursuant to title 42, section 1983 of the United States Code
against five Connecticut Department of Correction
(“DOC”) employees in their individual and
official capacities: Warden Stephen Faucher, Deputy Warden
Sharonda Carlos, Lieutenant Jon Ballaro, Lieutenant Kelly,
and Correction Officer Bowers. Compl. (Doc. No. 1).
Thereafter, on November 14, 2018, Rogers moved to amend his
complaint to add one more defendant: Deputy Warden Ronald
Cotta. Mot. to Amend Compl. (Doc. No. 7); Am. Compl. (Doc.
No. 7-1) at 4. Rogers claimed that the six defendants
violated his Eighth Amendment protection against cruel and
unusual punishment and his Fourteenth Amendment right to due
process by denying him a shower for five days, access to
video surveillance footage, and protective custody. Am.
Compl. at 9. He sought damages and injunctive relief.
Id. at 10.
January 2, 2019, this court dismissed with prejudice the
Amended Complaint for failure to state a claim under either
the Eighth or Fourteenth Amendments. Ruling Re: Mot. to Amend
Compl. and Initial Review Order (“IRO”) (Doc. No.
9) 6-9, 13. The court also ruled that, even if Rogers had
stated a plausible constitutional claim, the Amended
Complaint was subject to dismissal for failure to exhaust
administrative remedies. Id. at 10-12.
January 9, 2019, Rogers filed the instant motion to file a
second amended complaint restating his claims under the Fifth
and Fourteenth Amendments to the United States Constitution
because, at the time of the alleged violation, he was a
pretrial detainee and not a convicted prisoner. Mot. for
Leave to File Second Am. Compl. (“Mot. to Amend”)
(Doc. No. 10). He attached a proposed second amended
complaint, which alleges the same facts as the previous
complaints, but restates his claims under the Fifth and
Fourteenth Amendments rather than the Eighth Amendment.
See id. at 10-11. Because the court dismissed the
Amended Complaint with prejudice, the court will construe the
instant Motion as a motion to reopen the case. Despite the
restatement of the claims, however, the case should remain
STANDARD OF REVIEW
to title 28 section 1915A of the United States Code, this
court must review prisoner civil complaints and dismiss any
portion of a 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. Although detailed allegations are not
required, a 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.” Bell
Atlantic, 550 U.S. at 570. Nevertheless, it is
well-established that “[p]ro se complaints
‘must be construed liberally and interpreted to raise
the strongest arguments that they suggest.'”
Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir.
2013) (quoting Triestman v. Federal Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).
facts from the Amended Complaint (Doc. No. 7-1) and the
proposed Second Amended Complaint (Doc. No. 10) appear
identical. Thus, the court incorporates the allegations as
stated in its initial review order:
On October 13, 2018, a fight broke out in the E-Pod housing
unit at CRCI causing the unit to be locked down. Am. Compl.
at ¶ 1. Normal operations in the E-Pod unit permit only
twelve cells to be opened at one time for recreation, and
there are four separate recreation periods. Id. at
¶ 2. The fight occurred during the second recreation
period. Id. at ¶ 3. Rogers is scheduled for the
third recreation period, but his period was cancelled because
of the fight, even though the threat had been eliminated.
Id. As a result, Rogers was not permitted to take a
shower. Id. at ¶ 4. The last shower he had
taken before the cancellation of the recreation period was on
October 12, 2018, at approximately 1:30 p.m. Id.
Between October 12 and October 15, no out-of-cell movement
was permitted, and Rogers was, therefore, unable to take a
shower. Id. at ¶ 5. He asked CRCI staff about
whether he could shower but was told the decision to forbid
out-of-cell movement came from supervisors. Id. at
¶ 6. Rogers also wrote requests to Lieutenant Kelly,
Deputy Warden Carlos, and Warden Faucher about being denied a
shower, but he did not receive any response. Id. at
On October 17, Rogers spoke with Lieutenant Ballaro about
being denied a shower, explaining that he had not been able
to shower in over 72 hours. Id. at ¶ 10.
Ballaro dismissed his complaint, stating that “gang
members [were not] human; [they] were pieces of shit and get
no rights.” Id. Rogers wrote a second request
to Kelly, Carlos, and Faucher but received no response.
Id. at ¶ 11. A staff member told him that they
were busy. Id. Rogers then filed a grievance to
attempt to resolve the situation, but the grievance was
returned without disposition for failure to file an Inmate
Request. Id. at ¶ 12; Rogers' Ex. C (Doc.
No. 7-1 at 14-15).
At around 8:00 p.m. on October 17, Rogers was permitted to
shower after waiting for 124 hours (five days and four
hours). Am. Compl. at ¶ 14. The next day, he was removed
from the E-Pod unit and temporarily placed in a restrictive
housing unit (“RHU”) for safety reasons.
Id. at ¶ 15.
On October 22, Rogers was removed from the RHU to
“complete his [protective custody] package” and
was brought to Lieutenant Kelly's office. Id. at
¶ 16. Rogers asked Kelly why he had not responded to his
written requests regarding the shower issue. Id.
Kelly told him that he would not get a response and that he
should “drop the issue [because] it is what it
is.” Id. Rogers asked Kelly to elaborate, but
Kelly told him, “If you want this [protective custody
placement], you'll drop it.” Id. Rogers
did not inquire further about the issue. Id. at
On October 23, Rogers spoke with Warden Faucher and asked him
why he had not responded to his written requests.
Id. at ¶ 18. Faucher told Rogers that “he
makes the rules and that's that” and instructed him
to “drop the issue or ...