Baltas v. Frenis

          RULING ON THE PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY

          Robert M. Spector, United States Magistrate Judge

         I. BACKGROUND AND PROCEDURAL HISTORY

         On July 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).^[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).

         Attached 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).^[2]

         On 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).

         In 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. 18-19).

         On 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).^[3] 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.^[4]

         On 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).

         For the 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.

         II. DISCUSSION

         A. THE PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY

         In his 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^[5] 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).

         Section 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^[6] 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).

         1. FINDINGS OF FACT

         The 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 at 11).

         In 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.

         The 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).

         On 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.).^[7] 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.

         According 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).

         The 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 offense.

         The 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.

         Lieutenant 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.

         The 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).

         According 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.^[8]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).

         The 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).

         The 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.

         The DR 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.

         The 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 ...