Vandever v. Pluszynski

          MEMORANDUM OPINION

          Alvin W. Thompson, United States District Judge.

         The plaintiff, Frank Vandever (“Vandever”), was at all times relevant to this action incarcerated at Corrigan-Radgowski Correctional Institution in Uncasville, Connecticut (“Corrigan”). He brought an action pursuant to 42 U.S.C. § 1983 against defendants Lieutenant Martin Pluszynski (“Pluszynski”), Captain Robert Judd (“Judd”), and Commissioner James Dzurenda (“Dzurenda”). The complaint set forth claims that the defendants retaliated against the plaintiff, in violation of his First Amendment rights, for pursuing lawsuits against the Department of Correction or its employees by placing him on High Security status, and also that in connection with placing him on High Security status, the defendants violated his right to equal protection under the law and his right to procedural due process. The court dismissed the equal protection claim in the initial review order (ECF No. 7) and allowed the plaintiff to proceed with the First Amendment retaliation claim and the Fourteenth Amendment procedural due process claim against all the defendants in their individual capacities and against all the defendants in their official capacities to the extent the plaintiff sought declaratory relief. During closing arguments, the plaintiff represented that the First Amendment retaliation claim is against defendant Dzurenda only.

         For the reasons set forth below, after a bench trial, the court finds for the defendants on both of the plaintiff's remaining claims.

         I. FACTS

         On July 30, 1990, Vandever was sentenced to a term of life imprisonment, suspended after 40 years, having been convicted of murder. At the time he was sentenced, Vandever had been detained in various Department of Correction facilities since January 1989. In April 1990, while Vandever was at New Haven Community Correctional Center, he was put on Administrative Segregation status after being charged with, among other violations, attempted escape. In May 1990, while Vandever was at Montville Correctional Facility, the disciplinary committee found him guilty of attempted escape. Then, on December 31, 1991, Vandever and another inmate actually escaped from the maximum security prison in Somers. This was a high-profile incident because there had ever been only one other escape from a Connecticut Department of Correction maximum security prison. When he was finally apprehended, Vandever was charged in Connecticut with kidnapping, robbery, and burglary while a fugitive, and also charged with a series of armed robberies in New Jersey, also committed while he was a fugitive. Vandever was returned to the custody of the Department of Correction on January 22, 1992 and placed on High Security status.

         In November 1997, there was a hearing held with respect to Vandever being on High Security status. In the Restrictive Status Report of Hearing for Placement or Removal, the hearing officer recommended that Vandever should:

Remain on High Security with special security and population management considerations. Inmate Vandever was found guilty of a Contraband Class A DR--possession of escape related contraband, specifically a 12-page NIJ article on prison perimeter security. Inmate Vandever, until physically incapable, will always present a High Security risk for escape due to his length of sentence and his serious institutional escape hx. . . .

         Defendants' Trial Exhibit (“Defs.' Trial Ex.”) 3, at page 2. The Inmate Classification Administrator agreed that Vandever should remain on High Security status and gave as the reason:

“Possession of escape related contraband and prior escape and attempts.” Id.

         In February 2008, Lieutenant Edward Corl filed an incident report concerning Vandever. The incident report recited that another inmate, who had a job on the trash run, had reported that Vandever asked the other inmate to let him go with him on the trash run, and the other inmate refused because he did not want to be found guilty if Vandever were to escape. In March 2008, there was a hearing to determine whether Vandever should be placed on Administrative Segregation status. In the Restrictive Status Report Hearing for Placement or Removal, the Director of Offender Classification and Population Management (“OCPM”) concluded that the information provided did not support putting Vandever on Administrative Segregation status, and also concluded, “Manage at level 4 on H/S, warn offender of future behavior.” Plaintiff's Trial Exhibit (“Pl.'s Trial Ex.”) 8. Thus, it was the view of the Director of OCPM in March 2008 that Vandever should be on High Security status.

         On January 6, 2009, Michael P. Lajoie, the then-Director of Security for the Department of Correction, responded to a letter he had received from Vandever in which Vandever sought to be removed from High Security status. Lajoie informed Vandever that after discussing Vandever with others, Lajoie had concluded that Vandever would remain on High Security status, but authorized four special visits each year in which contact with Vandever's family would be allowed. Lajoie also informed Vandever that “[his] High Security status will continue to be reviewed on a regular basis in accordance with Administrative Directive 9.4.” Pl. Trial Ex. 4a. On June 15, 2009, Lajoie wrote to Vandever again and encouraged Vandever to “continue to display a positive attitude” and stated “perhaps we could consider the next level or removal of High Security.” Pl. Trial Ex. 4b.

         At some point prior to August 12, 2010, Scott Erfe (“Erfe”), the warden at Corrigan, wrote to Lynn Milling (“Milling”) who was at that time the Director of OCPM, recommending that Vandever be removed from High Security status. On August 12, 2010, Milling responded to Erfe, writing:

Please be advised that this office does not concur with your recommendation concerning the above named inmate, regarding his removal from High Security [s]tatus. Inmate Vandever is to remain on High Security status at this time.

Defs. Trial Ex. 1. A copy of the letter went to the “OCPM File.” Id. Kathryn Dudley, who was a supervisor in OCPM in August 2010, testified that if OCPM recommended that an inmate remain on High Security status, that inmate remained in High Security status at the OCPM unit.

         On August 11, 2010, Lajoie, who had by then become the District Administrator for the North District, wrote to Vandever in response to a letter from Vandever dated July 20, 2010. In that letter, Vandever had requested removal from High Security status. Lajoie advised Vandever:

Per Directive, I cannot make the decision to remove your High Security status. Therefore, by copy of this letter, I will forward your request to Warden Erfe for his review.

Pl. Trial Ex. 4c.

         Then, on August 18, 2010, Warden Erfe wrote to District Administrator Lajoie recommending that Vandever be removed from High Security status:

On July 29, 2010, the review committee met with inmate Vandever and has recommended that his High Security [s]tatus be removed while he is here at CRCC and he be placed on Special Monitoring Status. If and when inmate Vandever transfers from CRCC to another facility his High Security [s]tatus will be reinstated . . . For the aforementioned reasons, the review commit[tee] recommends consideration for removal of High Security [s]tatus and placement on Special Monitoring.” Pl. Trial. Ex. 4d.

         On August 24, 2010, Lajoie wrote “Approved” on the bottom of the August 18, 2010 letter from Warden Erfe. See Id. That letter also contains a notation “CC: D/C Dzurenda, ” which is understood to mean that a copy was sent to defendant Dzurenda in his capacity as Deputy Commissioner, which was his position at that time. However, Dzurenda never saw that letter until after this lawsuit was filed and has no recollection of the plaintiff ever being on any status other than High Security status.

         A copy of the letter containing these two notations was received by Warden Erfe's office on August 24, 2010. Warden Erfe relied on this document to order his subordinates to take Vandever off High Security status, despite having been informed that OCPM did not concur with Erfe's recommendation.

         When an inmate is placed on High Security status, there are restrictions with respect to housing. Section 14.E provides that “[a]n inmate placed on High Security Monitoring shall be housed in a secured call. The inmate shall be moved to a new cell at a minimum of every 90 days.” Administrative Directive 9.4, Pl. Trial Ex. 9c, at 11. In addition, Section ...