Fonck v. Semple

          MEMORANDUM OF DECISION

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         Preliminary Statement

         The 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.

         Fonck 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.

         Standard of Review

         The 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).

         Discussion

         The 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.

         Although 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 570.

         Officer Rose & Eighth Amendment Claims

         In his 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 actions.

         Fonck 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.

         Other 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.

         On 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 ...