United States District Court, D. Connecticut
HOWARD W. COSBY, Plaintiff,
TAWANNA, et al., Defendants.
INITIAL REVIEW ORDER
Michael P. Shea United States District Judge
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
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
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)).
December 18, 2018,  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.
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.
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”).
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
ADA and Rehabilitation Act Claims
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,