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Rogers v. Faucher

United States District Court, D. Connecticut

March 7, 2019

WAYNE ROGERS, Plaintiff,
STEPHEN FAUCHER, et al. Defendants.



         On 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.

         On 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.

         On 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 dismissed.


         Pursuant 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)).


         The 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 ¶¶ 7-8.
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 ¶ 17.
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 ...

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