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Cosby v. Tawana

United States District Court, D. Connecticut

April 30, 2019

HOWARD W. COSBY, Plaintiff,
v.
TAWANNA, et al., Defendants.

          INITIAL REVIEW ORDER

          Michael P. Shea United States District Judge

         Plaintiff Howard W. Cosby (“Cosby”), incarcerated at the MacDougall-Walker Correctional Institution in Suffield, Connecticut, filed this case under 42 U.S.C. § 1983. He contends that the defendants violated his rights under the First, Eighth, and Fourteenth Amendments as well as RLUIPA and the ADA. Cosby seeks damages from the defendants in individual and official capacities as well as injunctive relief.

         The Court must review prisoner civil complaints and dismiss any portion of the 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. This requirement applies to all prisoner filings regardless whether the prisoner pays the filing fee. Nicholson v. Lenczewski, 356 F.Supp.2d 157, 159 (D. Conn. 2005) (citing Carr v. Dvorin, 171 F.3d 115 (2d Cir. 1999) (per curiam)). Here, the plaintiff is proceeding in forma pauperis.

         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. “A claim has facial plausibility when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). The Court must construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006). To plead a cognizable legal claim, however, a pro se plaintiff must meet the standard of facial plausibility. See Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (“[A] pro se complaint must state a plausible claim for relief.”) (citing Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009)).

         I. Allegations[1]

         On December 18, 2018, [2] custody staff tried to place an inmate in Cosby's cell. The inmate told defendants Harris and France that he had a bottom bunk pass. Cosby also had a bottom bunk pass. ECF No. 1 at 17. In addition, Cosby had obtained permission from ADA Coordinator defendant Hall to choose a compatible cellmate because of Cosby's disability needs. Id. at 10.

         Cosby told Officers France and Harris of his permissions. He also told them that they would be jeopardizing his safety and security if they put the inmate in his cell. Officer Harris said that the inmates could fight and ordered the inmate to enter Cosby's cell. Id.

         At 6:30 p.m., the cell was opened for recreation. Cosby asked Officer France to open the legal room. When Cosby told Officer France that he was wrong to put the other inmate in his cell, Officer France said that he was following orders. Id. The other inmate wanted to fight with Cosby and followed him into the legal room. Cosby talked the inmate out of fighting and asked Officer France to call a lieutenant. Cosby explained the situation to defendant Lieutenant Jazmin. Lieutenant Jazmin denied that Cosby had any permissions from ADA Coordinator Hall. When Cosby offered to show him the permissions, Lieutenant Jazmin refused. Id. Cosby was issued disciplinary reports and taken to the restrictive housing unit (“RHU”).

         En route to RHU, an officer injured Cosby's right leg and foot by pushing Cosby's wheelchair over them. Cosby yelled in pain and complained to all staff present. Id. at 11. Lieutenant Jazmin did not order Cosby brought to the medical unit. Instead, he directed that he be brought to RHU. Defendant Nurse Joe was in RHU. When Lieutenant Jazmin did not tell him about Cosby's injury, Cosby reported the injury to Nurse Joe. Id.

         While Cosby was complaining that he did nothing wrong, Lieutenant Jazmin ordered two officers to stand Cosby on his disabled left foot and injured right foot. Cosby yelled in pain while Nurse Joe and other officers watched. Cosby told Nurse Joe, Lieutenants Jazmin and Rivera, and the other officers that it was wrong for them to stand and watch him being abused. Id.

         Cosby told the officers searching him that he was permitted to keep his Buddhist rosary. The officers took the rosary and did not return it. Nurse Joe and other custody staff members stood by and did not intervene. Lieutenant Jazmin ordered Cosby's shoelaces removed. Cosby explained that he needed the shoelaces for support and to stabilize his orthotic device for his left foot to no avail. Cosby informed all staff present that they were violating his ADA rights. Id.

         Before he was placed in RHU cell 3, Cosby asked Lieutenant Jazmin, Nurse Joe and all other custody officers present for his disability aids. These aides included a wheelchair, walker, knee braces, ankle braces, orthopedic shoes, compression socks, back binder, urinal, and diapers. Cosby never received any of the aids. Nurse Joe said that Cosby's medical chart included no passes, approvals, or doctor orders permitting the aids in RHU. Cosby also told Lieutenant Jazmin that approvals for the aids were in his medical charts. Nothing was done. Id. Cosby also asked Nurse Joe, Lieutenant Jazmin, and all custody officers present for a handicap accessible cell and shower. Neither was provided. Id.

         Nurse Joe x-rayed Cosby's right foot and gave him an ice pack and Motrin. The defendants left Cosby in the RHU cell. He was immobile because his wheelchair and other aids were not provided. Id.

         During the night, when Cosby tried to get to the toilet to urinate his plastic orthotic slipped out of his shoe. Cosby was unable to bear his weight on his injured right foot. He fell injuring his head, back, and ankles. Id. at 12. Cosby called for help. Officer Gerris, who is not a defendant, responded and said he would call the medical unit. He did not do so. Cosby kept yelling for help and wiggling his fingers under the cell door. Unit officers toured the unit but ignored Cosby's calls. Eventually, Cosby saw a light and awoke in the infirmary. A nurse told him that he had been unconscious and the on-call doctor had ordered him taken to the infirmary. Id.

         On the morning of December 19, 2018, Cosby spoke with ADA Coordinator Hall and asked her to ensure that he received his wheelchair and other aids in RHU. He sent her a follow-up written request the next day. Defendant Hall did not respond to the request. Id.

         The same morning, a doctor visited Cosby. When Cosby recounted the incident and complained of difficulty moving his back as well as back and head pain, the doctor told Cosby that he was not assigned to Cosby, and that Cosby's doctor would see him on December 23, 2018. Cosby requested x-rays and examination as well as use of his aids in RHU but the doctor, who is not a defendant, would not help. Id.

         During the second shift on December 19, 2018, defendant Lieutenant Mihaliak stopped in front of Cosby's infirmary room and told other officers that he felt like killing Cosby. Id. Lieutenant Mihaliak and the other officers entered the room to take Cosby back to RHU. When Cosby said that he was handicapped, badly injured, and had not yet received x-rays, Lieutenant Mihaliak said that he did not care. Nurses John and Jane Doe were present but permitted the officers to return Cosby to RHU. Id.

         Cosby complained that the officers risked further injury by moving him. Lieutenant Mihaliak did not care. Lieutenant Mihaliak also rejected the idea of requesting a video camera to record the transfer. Id. Lieutenant Mihaliak ordered officers to pick up Cosby and put him in his wheelchair. They further injured Cosby's back when they lifted him. Cosby requested that they leave the wheelchair in his cell and return his other aids. They refused. Id. at 13.

         At Lieutenant Mihaliak's order, two officers carried Cosby into his cell by his hands and feet. They intentionally slammed Cosby's head into the bunk ladder and threw him on the bunk. They removed his handcuffs and left the cell. Id. Lieutenant Mihaliak and defendant Officer Gardiner dropped Cosby's sneakers into the cell. Cosby was on the bunk with his head off the edge. Lieutenant Mihaliak threw Cosby's walker across the cell injuring Cosby's head and bruising his left arm, which Cosby had raised to protect his head. Cosby complained to medical and custody staff, but everyone refused to help him. He spoke and wrote to defendants Grant, Paton, Hall, and Mulligan. Id. RHU Manager Paton read Cosby's request when Cosby handed it to him though the cell door but did nothing. Id. at 15.

         Cosby remained in RHU for seventeen days. During that time, he was provided only one handicap shower. Id. at 14. Staff refused to throw out Cosby's trash and there were problems with the toilet in his cell. Id. at 13-14. On December 27, 2018, water from Cosby's toilet flooded his cell. A plumber was called to address a problem on the upper tier that caused the toilets on the lower tier to overflow. Id. at 14. The plumbers and tierman cleaned the water from the hallway and all cells except Cosby's. Id.

         During the second shift, Cosby complained to Lieutenant Mihaliak and Officer Gardiner about his flooded call. They ignored him and refused to have the cell floor cleaned of the water, feces, urine and toilet paper. Cosby fell on the wet floor. When he called for help, the officers laughed at him before finally calling a code. Lieutenant Jazmin warned Cosby that a chemical agent would be deployed if he moved and, at the same time, ordered him to get up. Two nurses were present but did nothing to help him. Lieutenant Jazmin and other officers roughly dragged Cosby into the hallway and put him on a stretcher. Officer Gardiner pressed the plastic sides of the stretcher to cover Cosby's face and pressed his sternum with force. The nurses told custody staff that Cosby was faking. Id.

         In the infirmary, Lieutenant Jazmin ordered the camera turned off and began accusing Cosby of faking. He told Cosby that if Cosby sued him, he would press outside charges. Id. Cosby was returned to RHU. Id. at 15.

         Cosby was released from RHU on January 3, 2019. He noticed that $800.00 of his property had been stolen from the property room. The property officers first accused Cosby of lying, but then verified his purchases and told him to submit a written request preliminary to his filing a property claim form. Cosby has not yet received a response to his written request. Id.

         A few days after returning to his housing unit, an inmate told Cosby that some of his property had been held in the unit bubble. Cosby went to the bubble and asked an officer who does not usually work in that unit for his property. The officer returned a large portion of Cosby's legal work and one of his prayer rugs. Cosby assumes that Officers Harris and France, who had issued him the allegedly false disciplinary report that resulted in the RHU placement, had stolen the property that was found in the bubble. Id.

         RHU Manager Paton and his staff refused to give Cosby grievance and request forms while he was in RHU. Officer Gardiner tampered with Cosby's religious diet by giving him partial meals and putting toilet paper in his trays. Officer Gardiner also refused to give Cosby clean clothes and linen or clean his cell. Id. The smell in Cosby's cell caused him to experience headaches. His skin was covered with urine and feces. Id. at 16. Warden Mulligan, Counselor Grant, RHU Manager Paton and several nurses denied Cosby pain medication. Id. Lieutenant Jazmin, Officer Gardiner, Lieutenant Mihaliak, and other staff repeatedly called Cosby a rapist. Other inmates also have begun calling Cosby a rapist. Id.

         Cosby was found not guilty of the threats charge that resulted in his RHU placement. Two other disciplinary charges that resulted from the threats charge were not dismissed. Id.

         II. Analysis

         Cosby names forty-two defendants: RN Supervisor Tawana, ADA Coordinator Hall, RHU Manager Paton, Correctional Officer Bushnell, Correctional Officer Robinson, Correctional Officer Landrie, Warden Mulligan, RHU Counselor Grant, Correctional Officer Lugo, Correctional Officer France, Correctional Officer Harris, Lieutenant Jazmin, Lieutenant Rivera, Lieutenant Mihaliak, two Lieutenants John Doe, Correctional Officer Gardiner, Correctional Officer Thomasassin, Correctional Officer Sullivan, Correctional Officer Beartrand, RN Gloria, RN Shawna, RN Jane Doe, RN John Doe, RN Joe, and seventeen John Doe correctional officers. He asserts the following claims: denial of liberty subjecting him to atypical and significant hardship, cruel and unusual punishment in violation of the Eighth Amendment, denial of freedom of religion in violation of the First Amendment, deliberate indifference to serious medical needs, retaliation in the form of verbal and physical assault, denial of access to courts, use of excessive force, violation of RLUIPA, violation of the Title II of the ADA and Section 504 of the Rehabilitation Act, and violation of Article first, section 8 of the Connecticut Constitution. Cosby also states that the defendants discriminated against him because of his disability and Buddhist beliefs.

         A. ADA and Rehabilitation Act Claims

         Cosby states that all of the named defendants were involved in denying him the disability aids and handicap accessible showers and cell. ECF No. 1 at 13. He challenges this denial as violating his rights under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et ...


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