United States District Court, D. Connecticut
MEMORANDUM OF DECISION
A. DOOLEY UNITED STATES DISTRICT JUDGE
plaintiff, Charles Christopher Fonck III
(“Fonck”), commenced this action to challenge his
sex treatment needs score. He argued that his classification
violated his Fourteenth Amendment rights to due process and
equal protection of the laws. Fonck claimed that he was
subjected to more stringent conditions of confinement and
denied programming and Risk Reduction Earned Credit in
violation of the Eighth Amendment. Fonck also asserted a
claim for violation of Article first, section 9 of the
Connecticut Constitution. On September 27, 2018, the Court
dismissed all Eighth Amendment claims as well as the equal
protection claim. ECF No. 9. The Fourteenth Amendment due
process claim and the state constitutional claim challenging
the classification procedures and their application to Fonck
were permitted to proceed. Id.
requests leave to amend his complaint. The proposed amended
complaint: (1) seeks to add an additional defendant,
Correctional Officer Rose; (2) re-asserts the dismissed equal
protection claim; (3) adds an ex post facto claim; (4) adds
Eighth Amendment claims against defendants Hubbard, Lugo, and
Rose; and (5) adds due process and equal protection claims
pursuant to Article first, sections 8, 10, and 20 of the
Connecticut Constitution. The defendants oppose the motion
because, they assert, amendment would be futile.
district court has broad discretion when determining whether
leave to amend a complaint should be granted. Gurary v.
Winehouse, 235 F.3d 792, 801 (2d Cir. 2000). Leave to
amend generally should be “freely give[n] … when
justice so requires.” Fed.R.Civ.P. 15(a)(2). The court
may deny leave to amend, however, for “‘undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of the allowance of the amendment, futility of the
amendment, etc.'” Ruotolo v. City of New
York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting
Forman v. Davis, 371 U.S. 178, 182 (1962)).
“An amendment to a pleading is futile if the proposed
claim could not withstand a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6).” Lucente v. IBM Corp.,
310 F.3d 243, 258 (2d Cir. 2002) (citation omitted).
proposed Amended Complaint, with attachments is 320 pages.
Therein, Fonck reiterates the previously permitted due
process claim and seeks to add or reinstate other claims. As
with the original complaint, the Court must review the
amended complaints and dismiss any portion of the amended
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. 28 U.S.C. § 1915A. Thus, before deciding whether
leave to amend should be granted, the Court will review the
proposed amended complaint to ascertain whether it contains
facts that would support plausible claims for relief. If it
does not, amendment would be futile and the motion to amend
must be denied.
detailed allegations are not required, the 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 plausible 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.” Twombly, 550 U.S. at
Rose & Eighth Amendment Claims
original complaint, Fonck asserted an Eighth Amendment claim
based on unconstitutional conditions of confinement citing
forfeiture of Risk Reduction Earned Credit, ineligibility for
certain educational and job opportunities, and the denial of
parole and community placement. The Court dismissed this
claim determining that Fonck had not alleged the denial of
any basic human need, only the deprivation of opportunities
or privileges. Doc. No. 9 at 10-11. In the proposed amended
complaint, Fonck asserts an Eighth Amendment claim against
defendants Hubbard, Lugo, and Rose, alleging these defendants
placed him at risk of serious harm or death through their
makes the following allegations to support this claim. On
November 23, 2016, defendant Lugo, accompanied by defendant
Hubbard, gave Fonck his Offender Accountability Plan. Doc.
No. 45-1, ¶¶ 35-36. The plan required Fonck to
participate in sex offender treatment. Id., ¶
37. When Fonck questioned this requirement, defendant Lugo
threatened to make Fonck pay if he did not sign the form.
Id., ¶ 38. Defendant Hubbard commented,
“Don't worry we make sure inmates with those kind
of charges live comfortably.” Id., ¶ 39.
Fonck refused to sign the form. Id., ¶ 40.
Shortly thereafter, defendant Lugo left a copy of the
Offender Accountability Plan face-up on Fonck's bunk
while he was at recreation. Id., ¶¶ 41-42.
inmates saw the plan and began referring to Fonck as a rapist
or ripper. Id., ¶¶ 43-44. Gang members
approached Fonck and threatened to harm him if he did not pay
them weekly with commissary items. Id., ¶ 45.
When Fonck refused, he was beaten in the bathroom or shower.
Id., ¶ 46. Defendant Lugo issued Fonck a
disciplinary report for refusing an institutional program.
Id., ¶ 48. Fonck pleaded not guilty.
Id., ¶ 49.
December 5, 2016, defendant Hubbard approached Fonck in the
dayroom. Id., ¶ 63. Defendant Hubbard ordered
Fonck to get his identification. Id., ¶ 66.
When Fonck refused, defendant Hubbard stated he would get
Fonck “out of here one way or another.”
Id., ¶ 67. Defendant Hubbard issued Fonck a
disciplinary report for disobeying a direct order.
Id., ¶ 69. Fonck contends that defendant