United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S APPLICATION FOR
M. Spector, United States Magistrate Judge
BACKGROUND AND PROCEDURAL HISTORY
16, 2018, the plaintiff, Joe Baltas, an inmate in the custody
of the Connecticut Department of Correction, commenced this
action under 42 U.S.C. §§ 1983 and 1988 against
Warden Denise Dilworth, Deputy Wardens David Egan and
Kimberly Jones, Lieutenant Paul Frenis, Correctional Officers
(“CO”) Ragauskas, Gryken, LeFevre, Peralta, Guest
and McGoldrick, Counselor Calderon, and “LPC”
Andrade. (Doc. No. 1). The plaintiff alleges that, while he was
housed at Garner Correctional Institution
(“Garner”), the defendants, acting alone, and/or
in concert, attempted to intimidate the plaintiff so he would
not file grievances; retaliated against him for filing
grievances; employed excessive force against him; exercised
deliberate indifference to his medical condition; failed to
exercise supervision over the staff at Garner; and,
“[t]orture[d] [the] [p]laintiff by their actions and
failure to appropriately protect [the] [p]laintiff.”
(Doc. No. 1).
to his Complaint was an Application for Prejudgment Remedy
(Doc. No. 1-2), an affidavit in support (Doc. No. 1-3), and a
Motion for Prejudgment Disclosure (Doc. No. 1-5). On
September 11, 2018, the Court (Eginton, J.) referred the
Application for Prejudgment Remedy to this Magistrate Judge.
(Doc. No. 7; see Doc. Nos. 12-13).
October 12, 2018, the Court held a telephonic status and
scheduling conference (Doc. Nos. 10, 15), during which it
addressed the deficiencies in the plaintiff's affidavit
filed in support of his Application for Prejudgment Remedy.
(Doc. Nos. 14, 17). The Court held oral argument as to the
application on October 30, 2018, following which it denied
the Prejudgment Remedy as to defendants Calderon, LeFevre,
Peralta, Guest, McGoldrick and Andrade because the plaintiff
did not mention any of those defendants in the supporting
affidavit. (Doc. No. 17).
supplemental briefing that the Court ordered regarding the
remaining defendants (Frenis, Ragauskas, Gryken, Dilworth,
Egan and Jones), the parties addressed three issues: (1)
whether the plaintiff's affidavit complied with the
requirements set forth in the prejudgment remedy statute; (2)
whether the need for an evidentiary hearing was moot in light
of the State's representation to the Court that it would
indemnify the defendants; and, (3) whether the
plaintiff's failure to provide statutory notice in his
Application for Prejudgment Remedy was fatal. (Doc. Nos.
November 30, 2018, the Court issued an Order Regarding the
Plaintiff's Application for Prejudgment Remedy (Doc. No.
22) in which it concluded that, “unless the State is
willing to assure the plaintiff that the defendants will be
indemnified through the entry of a judgment, if any, in this
case, the mere likelihood or probability of indemnification
would not preclude the entry of a PJR.” (Doc. No. 22 at
2). Additionally, as to the defendants' claim that the
plaintiff's failure to provide statutory notice was fatal
to his Application, this Court concluded that the defendants
were not denied notice and had failed to demonstrate
prejudice; thus, the plaintiff's failure to comply with
subsections (e), (f) and (g) of Conn. Gen. Stat. §
52-278c was not fatal to his request for a PJR hearing. (Doc.
No. 22 at 3). Accordingly, on January 8, 2019, the Court held
an evidentiary hearing under § 52-278d, at which the
plaintiff began his testimony. (Doc. No.
40-41). All of the defendants named in the PJR
motion appeared for the January 8, 2019 hearing, and the
Court admitted, without objection, both the plaintiff's
and the defendants' exhibits.
February 15, 2019, the plaintiff testified by
videoconference, and Deputy Warden Egan testified for the
defendants. (Doc. Nos. 46-47). Consistent with this
Court's order, on March 1, 2019, the parties filed
simultaneous post-hearing briefs. (Doc. Nos. 48-49).
reasons stated below, the plaintiff's Application for
Prejudgment Remedy (Doc. No. 1-2) is DENIED, and the
plaintiff's Motion for Disclosure (Doc. No. 1-5) is
DENIED AS MOOT.
THE PLAINTIFF'S APPLICATION FOR PREJUDGMENT
Application for Prejudgment Remedy, the plaintiff states that
there is “probable cause that a judgment in the amount
of the prejudgment remedy sought . . . will be rendered in
this matte[r] in favor of the [p]laintiff . . . . [in] the
sum of $100, 000 (each Defendant)[.]” (Doc. No. 1-2 at
2). Attached to his Application is a signed
affidavit in which the plaintiff avers that he
contacted Warden Dilworth, and Deputy Wardens Egan and Jones;
that CO Ragauskas filed a false report and continued to
harass the plaintiff; that Lieutenant Frenis threatened the
plaintiff, maced him, and harassed him; and, that CO Gryken
harassed him and retaliated against him for filing
grievances; he also asserts allegations against three other
individuals who are not named defendants. (Doc. No. 1-3).
52-278c(a) requires that an affidavit in support of a
prejudgment remedy sets forth “facts sufficient to show
that there is probable cause” that a judgment will
enter in an amount equal to or greater than the amount of the
prejudgment remedy sought, “taking into account any
known defenses, counterclaims or set-offs[.]”
Id. The plaintiff's allegations in his affidavit
are limited and general, and he does not aver as to the
damages he suffered as a result of the actions of each of
these defendants. See Davila v. Secure Pharmacy
Plus, 329 F.Supp.2d 311, 313 (D. Conn. 2014) (finding
that the plaintiff did not “set forth a statement of
facts to show that there is probable cause that a judgment in
the amount [sought, ] will enter in favor of [the]
[p]laintiff . . ., as required [by] §
52-278c(a)”). Accordingly, the Court held an
evidentiary hearing to address the limited “issue of
whether probable cause that a judgment in the amount of the
prejudgment remedy sought, taking into account any defenses,
counterclaims or set off, will be rendered in favor of the
plaintiff.” (Doc. No. 34).
FINDINGS OF FACT
plaintiff is serving a ninety-five-year sentence for murder,
and a twenty-year consecutive sentence for assault.
(Def.'s Ex. 505). The plaintiff is a Chronic Discipline
inmate, he is on High Security Status, and he was assigned to
Administrative Segregation in December 2016 for threats
against staff at Garner “and [for] his pattern of
violent and dangerous behavior.” (Id.). In
February 2014, he was assigned to Administrative Segregation
for “manufacturing a weapon and using it to stab
another inmate[.]” (Def.'s Ex. 505). Chronic
Discipline status is dependent upon the seriousness and
repetitiveness of disciplinary behavior. (Def.'s Ex. 502
at 6). Chronic Discipline, Administrative Segregation, and
High Security are all restrictive status placements.
(Def.'s Ex. 502). At the time of the events at issue in
this case, the plaintiff was on High Security Status because
he had threatened staff, had a staff threat profile, and had
a history of serious disruptive behavior. (Def.'s Ex. 502
addition to being a Chronic Discipline Inmate on High
Security Status, the plaintiff was the subject of a staff
separation profile for a correctional officer at Garner, CO
Poma, because the plaintiff threatened to stab that officer.
Deputy Warden Egan, who was the Deputy Warden for Operations
at Garner when the plaintiff was incarcerated there,
explained that, after the plaintiff threatened to stab CO
Poma, he was transferred to Administrative Segregation at
Northern CI, the only level five facility located in
Connecticut. Eventually, the plaintiff was returned to
Garner, a level four facility.
plaintiff testified that, despite a staff separation profile
involving the plaintiff and CO Poma, on at least one
occasion, CO Poma interacted with, and attempted to
intimidate, him. On January 11, 2018, the plaintiff filed a
grievance about this interaction in which he alleged
harassment and expressed concern for his health and safety.
(Def.'s Ex. 517). Warden Dilworth responded to the
plaintiff's complaint by noting that the final
determination for housing “is at the discretion of
population management[, ]” and by finding that there
was “no evidence” of the staff acting
“unprofessional[ly]” towards the plaintiff.
(Def.'s Ex. 517).
January 12, 2018, and again the next day, the plaintiff
received a public indecency Disciplinary Report
(“DR” or “ticket”). (Def.'s Exs.
507-508). As to both of these tickets, he pleaded guilty,
with “no contest” handwritten next to his
signature. (See id.). The plaintiff testified that he
pleaded guilty because he “takes responsibility for the
things [he] does.” On February 5, 2018, the plaintiff
received two tickets. The first ticket was for public
indecency (Def.'s Ex. 520), and the second was for
threatening. (Def.'s Ex. 509). The events surrounding
these tickets gave rise to several of the claims at issue in
this lawsuit. The plaintiff testified that, at around
11:30-11:45am on February 5, 2018, CO Ragauskas was walking
through the cell block handing out razors when she reported
that the plaintiff was masturbating in his cell while staring
at her. (Ex. C & Ex. 518). Rauguskas issued the plaintiff
a DR for public indecency. Public indecency is a Class A
offense, and, once an inmate receives a Class A offense, he
is processed into restrictive housing pending the
adjudication of the DR.
to the plaintiff, about ten minutes later, Lieutenant Frenis,
who had previously threatened the plaintiff, and three or
four other officers including a camera officer, came to his
cell door. Lieutenant Frenis ordered the plaintiff to pack
his belongings to go to segregation for engaging in indecent
behavior. The plaintiff responded by telling Lieutenant
Frenis to check the video because the report was false. The
Incident Report completed by Lieutenant Frenis indicates that
the plaintiff told Lieutenant Frenis, “I will make you
do it the hard way today!” (Def.'s Ex. 518 at 3 of
11). Similarly, the Incident Report completed by Lieutenant
Maloid states that the plaintiff would not allow staff to
place him in hand restraints and told them they “would
have to do this the hard way”; the Incident Report
completed by CO Boucher states that the plaintiff said he
would “rather go the hard way”; and, the
Incident Report completed by CO Griffin reflects that the
plaintiff said that he would “rather go the hard
[way].” (Def.'s Ex. 218 at 4-7).
plaintiff testified that he walked away from the door and
began to pack his property. The Incident Reports consistently
reflect that the plaintiff “was given a direct order to
place his hand thr[ough] the trap to be cuffed up” and
that he “refused and started to pack his
property.” (Def.'s Ex. 218 at 6 (CO Griffin);
see Def's Ex. 218 at 5 (CO Boucher reported that
the plaintiff “refused to comply with staff orders to
be handcuffed.”); see Def.'s Ex. 518 at 10
(CO Major reported that, “[u]pon entering the unit[, ]
Inmate Baltas refused to comply with staff direct orders to
cuff up.”)). Disobeying a direct order is a Class B
plaintiff testified that, typically, an inmate is brought to
segregation first, and then his property is packed by the
correctional officers; he acknowledged that the order of
events that day, as he described them, was
“unusual.” The plaintiff later testified that he
was “pretty sure” he was told to pack his
property and that, even if he disobeyed a direct order, the
level of force that ensued was not justified.
Frenis was standing outside the plaintiff's cell door and
could see inside the cell through a window at chest level
that was two feet high and five inches wide. According to the
plaintiff, Lieutenant Frenis said something about a
toothbrush that was sharpened into a weapon (see
Pl.'s Ex. B), lying on a sink located right inside the
cell door. Deputy Warden Egan testified, and all of the
Incident Reports reflect, that the plaintiff was
“defiant and agitated” and that he threatened to
stab any staff member who entered his cell. (Def.'s Ex.
509; Def. Ex. 518 at 3-7, 10-11). Lieutenant Frenis stated in
his Incident Report that it was “unclear if [the
toothbrush] was sharpen[ed] or not, ” (Def.'s Ex.
518 at 3), but in viewing the situation, Lieutenant Frenis
was aware of the plaintiff's history of making weapons
and of threatening to stab staff.
plaintiff acknowledged that Lieutenant Frenis told him to
come to the “trap” to “cuff up” and
that he refused. At some point, Lieutenant Frenis noted that
the plaintiff made what Deputy Warden Egan described as a
“sudden movement” towards the toothbrush. As
Deputy Warden Egan testified, and as reflected in the
Incident Reports, Lieutenant Frenis, knowing the
plaintiff's history of violent behavior, responded by
spraying a chemical agent through the trap door. (Def.'s
Ex. 518 at 3).
to the plaintiff, he was standing five feet away from the
door and from the toothbrush when Lieutenant Frenis deployed
the chemical agent. The plaintiff tried to wipe the substance
out of his eyes with water from the sink, but claimed that
the water had been turned off.The plaintiff's testimony as
to his location at the time matches Lieutenant Frenis'
Incident Report; after Lieutenant Frenis discharged the
chemical agent “without desired effect[, ]” the
plaintiff “still didn't comply with my direction[,
] blading his body, hovering over the toilet bowl where the
toothbrush was located.” (Def.'s Ex. 518 at 3). The
plaintiff testified that he used toilet water to rinse his
face. Lieutenant Frenis reported that, because he could not
tell if the toothbrush was in the plaintiff's hand, he
“deployed another burst of the chemical agent . . .,
without desired effect” and then directed the plaintiff
to come to the door and allow staff to place him into hand
restraints. (Def.'s Ex. 518 at 3). The plaintiff still
refused to comply. Lieutenant Frenis directed him again, this
time warning him that a chemical agent would be used again if
he failed to comply. In the absence of compliance, Lieutenant
Frenis discharged another chemical agent. At that point, the
plaintiff “placed his hand through the food serving
trap and allowed staff to secure him.” (Def.'s Ex.
518 at 3).
plaintiff contends that, rather than providing the plaintiff
with a change of clothes, a shower, and medical flushing of
his eyes, the officers brought him to a shower and
“forcibly” placed his head under the showerhead
for several seconds, which did not remove the chemical agent.
According to the plaintiff, they then executed a controlled
strip search of him with female officers present. The
plaintiff testified that the strip search caused him to feel
demeaned, violated “and various other negative
feelings.” According to the plaintiff, following the
strip search, he was ordered to stand unclothed for a
photograph, but because he could not breathe, he refused to
submit to the photo. Lieutenant Frenis' Incident Report
reflects that a female CO “attempted to take a post
restraint photograph of inmate Baltas's visual condition,
but he refused to allow her to do so.” (Def.'s Ex.
518 at 3).
plaintiff acknowledged that, following the decontamination of
his eyes, and the controlled strip search, Lieutenant Frenis
brought him to the medical unit where he received a nebulizer
treatment for fifteen to twenty minutes. On cross
examination, the plaintiff testified that he was seen by a
nurse and a doctor. The records from this incident reflect
that “UCONN Medical RN . . . conducted a post restraint
check; noting no injuries to the wrists. UCONN Medical RN . .
. also cleared inmate Baltas to be housed in restrictive
housing. Following completion of incident RN . . . [and]
additional assessment of inmate Baltas and for precautionary
measures[, ] she requested inmate to be seen by Dr. Gerald
Velletta in outpatient medical”; Dr. Velletta examined
the plaintiff before he was released to restrictive housing.
(Def.'s Ex. 518 at 3 of 11). According to the plaintiff,
when Lieutenant Frenis accompanied him to restrictive
housing, he told the plaintiff he would do this all again.
issued by CO Rauguskas for the public indecency was dismissed
for “[l]ack of evidence.” (Def.'s Ex. 520).
Deputy Warden Egan testified that he reviewed the video
associated with this ticket and thought it was inconclusive
as to whether Ragauskas witnessed the plaintiff masturbating
in his cell. According to Deputy Warden Egan, there was no
way to use video footage to substantiate whether the
plaintiff did what Rauguskas said he did because the hallway
cameras do not offer views into the cells; though the staff
can look into the small window in the cell door to observe
actions within the cell, there is no video camera affording a
similar view into the cell.
plaintiff pleaded guilty to the ticket issued by Lieutenant
Frenis for threatening to use a toothbrush to stab anyone who
came into his cell that morning. (Def.'s Ex. 509).
According to the plaintiff, he added “ N.C. U.D.”
(no contest under duress) to his signature (Def.'s Ex.
509 at 2), but the “ N.C. U.D.” is crossed out on
the document. (See id.). The plaintiff claims ...