United States District Court, D. Connecticut
RULING ON PENDING MOTIONS
R. UNDERHILL, UNITED STATES DISTRICT JUDGE
plaintiff, Ricardo Negron (“Negron”), is
incarcerated at the MacDougall-Walker Correctional
Institution (“MacDougall-Walker”). He initiated
this action by filing a complaint under 42 U.S.C. § 1983
against Correctional Officer Matthews. On October 16, 2017,
pursuant to my review of the complaint under 28 U.S.C. §
1915A, I dismissed the claim for monetary damages and
declaratory relief against the defendant in his official
capacity and dismissed the claim under the Prison Rape
Elimination Act (“PREA”) against the defendant in
his individual capacity. See Initial Review Order
(“IRO”), ECF No. 7, at 5. I concluded that the
Eighth Amendment claims for sexual harassment and deliberate
indifference to safety would proceed against the defendant in
his individual capacity. See id.
19, 2018, I granted Negron leave to file an amended complaint
to add new defendants. On August 2, 2018, Negron filed an
amended complaint naming Warden Mulligan, Deputy Warden Jesus
Guadarrama and Correctional Officer Sean Matthews as
defendants. See Am. Compl., ECF No. 19. Pending
before the court is a motion to dismiss the amended complaint
filed by Officer Matthews and a motion for appointment of
counsel filed by Negron. For the reasons set forth below, the
motion for appointment of counsel is denied, the motion to
dismiss is granted and the claims in the amended complaint
that are asserted against Deputy Warden Guadarrama and Warden
Mulligan are dismissed.
Motion for Appointment of Counsel [ECF No. 21]
seeks the appointment of pro bono counsel. In the
motion, Negron describes his claims as a denial of needed
medical treatment. As indicated above, however, this case
involves a claim that a correctional officer sexually
harassed Negron. In support of the motion, Negron states that
he has “mental health” and cannot afford to hire
litigants do not have a constitutional right to the
appointment of counsel. See Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir. 1986) (district
judges are afforded “broad discretion” in
determining whether to appoint pro bono counsel for
an indigent litigant in a civil case); 28 U.S.C. §
1915(e)(1) (“The court may request an attorney
to represent any person unable to afford counsel.”)
(emphasis added). In addition, the Second Circuit has
repeatedly cautioned the district courts against routinely
appointing pro bono counsel. See, e.g.,
Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997);
Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d
considering whether to appoint pro bono counsel for
an indigent litigant, a district court must “determine
whether the indigent's position seems likely to be of
substance.” See Hodge, 802 F.2d at 61.
“[E]even where the indigent [litigant's] claim is
not frivolous, counsel is often unwarranted where the
[litigant's] chances of success are extremely
slim.” Cooper, 877 F.2d at 171; see also
Carmona v. United States Bureau of Prisons, 243 F.3d
629, 632 (2d Cir. 2001) (denying counsel on appeal where
petitioner's appeal was not frivolous but nevertheless
appeared to have little merit).
I have determined that the allegations in the complaint are
not frivolous, I cannot conclude at this time that Negron is
likely to succeed on the merits of the claims asserted in the
complaint or the amended complaint. Additionally, Negron has
made insufficient efforts to secure legal assistance or
representation on his own. See Hodge, 802 F.2d at 61
(indigent litigant must demonstrate that he or she is unable
to obtain counsel or legal assistance independently before a
district court will appoint pro bono counsel).
September 2017, Negron contacted Attorney Michael Peck,
Yale's Legal Services Organization, and the American
Civil Liberties Union. He states that he did not receive a
response to his letter from the American Civil Liberties
Union. It is unclear whether Yale Legal Services or Attorney
Peck responded to Negron's letters or telephone calls.
Although the Inmates Legal Aid Program (“ILAP”)
may not be able to represent Negron, the program attorneys
may be available to assist him in litigating the case. I
conclude that Negron has not made sufficient recent attempts
to secure representation or assistance independently. Nor has
he demonstrated that the Inmates' Legal Aid Program is
unavailable or unwilling to assist him. Accordingly, the
motion for appointment of counsel is denied.
Motion to Dismiss [ECF No. 20]
Matthews raises one argument in support of his motion to
dismiss. He contends that the allegations in the amended
complaint regarding the isolated incident involving sexual
verbal harassment by him do not state a claim under the
Eighth Amendment because the alleged conduct is not
sufficiently severe or repetitive.
Standard of Review
ruling on a Rule 12(b)(6) motion to dismiss, the court
“accepts as true all of the factual allegations set out
in [the] complaint, draw[s] inferences from those allegations
in the light most favorable to the plaintiff, and construes
the complaint liberally.” Roth v. Jennings,
489 F.3d 499, 510 (2d Cir. 2007) (internal quotation marks
and citation omitted). In addition to the facts set forth in
the complaint, the court may also consider documents either
attached to the complaint or incorporated into it by
reference, “and matters subject to judicial
notice.” New York Pet Welfare Ass'n, Inc. v.
City of New York, 850 F.3d 79, 86 (citation omitted),
cert. denied, ___ U.S. ___, 138 S.Ct. 131 (2017).
withstand a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when ... plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant[s] [are] liable for the misconduct
alleged.” Id. The plausibility standard is not
the equivalent of a probability standard but requires
something more than the assertion of allegations suggesting
the mere possibility that the defendant engaged in unlawful
conduct. See Id. Legal conclusions and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice” to state a plausible claim for relief.
Ashcroft, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555).
... the complaint was filed pro se, it must be
construed liberally with ‘special solicitude' and
interpreted to raise the strongest claims that it
suggests.” Hogan v. Fischer, 738 F.3d 509, 515
(2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d
116, 122 (2d Cir. 2011)). Nevertheless, a pro se
plaintiff's complaint still must state a plausible claim
for relief. Id. (citations omitted).
amended complaint includes the following facts. On February
28, 2017, prison officials placed Negron on suicide watch and
confined him in a cell in the restrictive housing unit at
MacDougall-Walker. Am. Compl. ¶ 1. At some point between
1:00 p.m. and 3:00 p.m., Officer Matthews opened the trap in
Negron's cell door, placed a piece of paper in the trap
and made sexual comments towards Negron. Id. ¶
2. Negron became upset and swore at Officer Matthews.
Id. ¶ 3. In response, Officer Matthews reached
his hand into the trap. Id. ¶ 4. Negron backed
up and yelled out for Control Officer Brisco. Id.
Control Officer Brisco notified Lieutenant Beebe.
Lieutenant Beebe came to Negron's cell, Negron stated
that he wanted to file charges against Officer Matthews,
including a complaint under the PREA, and handed Lieutenant
Beebe a completed inmate request form and a grievance form.
Id. ¶¶ 4-5 & at 13-15. Negron states