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Fowler v. Department of Corrections

United States District Court, D. Connecticut

May 20, 2019

JAMARR FOWLER, Plaintiff,
v.
DEPARTMENT OF CORRECTION et al., Defendants.

          INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. § 1915A

          JEFFREY ALKER MEYER, UNITED STATES DISTRICT JUDGE

         Plaintiff Jamarr Fowler was a prisoner in the custody of the Connecticut Department of Correction (DOC) during the events alleged in his complaint. He alleges that he is hearing impaired and that the DOC and numerous individual prison officials violated his rights under the Americans with Disabilities Act and the Rehabilitation Act, as well as under the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. Based on my initial review pursuant to 28 U.S.C. § 1915A, I conclude that Fowler's complaint should be served on the DOC and several individual defendants.[1]

         BACKGROUND

         At the times relevant to this complaint, Fowler was incarcerated at Cheshire Correctional Institution. His complaint names as defendants the Department of Correction (DOC) and 14 prison officials in their individual and official capacities: Scott Semple, Karen Martucci, Angel Quiros, Scott Erfe, Mr. Guadarrama, Mr. Vigor, Mr. Watson, Mr. Mazurek, Ms. Verdura, Mr. Wright, Russ Taylor, Mr. Carbone, Mr. Disteffano, and Ms. Peterson.

         The following allegations from the complaint are accepted as true solely for purposes of the Court's initial review. Fowler is hearing impaired/deaf. He also suffers from severe seizures and asthma. Doc. #1 at 6 (¶ 19). On May 23, 2018, Fowler was transferred to Cheshire CI and housed in the North 3 unit. Defendant Taylor was the North 3 unit manager. Ibid. (¶ 20).

         During recreation period, inmates were permitted to use the inmate phone system. But when Fowler asked to use the TTY phone, defendants Taylor and Carbone denied his request. Fowler complained to defendants Erfe, Guadarrama, and Vigor about being unable to use the TTY phone, but they ignored his complaints. Fowler then asked his family and friends to call and make complaints to the Commissioner. Although Fowler was permitted to use the TTY phone after they petitioned the Commissioner, he did not receive permission until sixteen days after he was transferred to Cheshire.

         Even after Fowler was permitted access to the TTY phone, he was not afforded access equal to that of other inmates using regular inmate phones. Taylor and Carbone ordered that Fowler be able to use the TTY phone on Monday, Thursday, Friday, and Saturday during the first-shift recreation period and on Tuesday, Wednesday, and Sunday during the second-shift recreation period. He was limited to one 30-minute call each day, whereas other inmates could use the inmate phones during both the first- and second-shift recreation periods on Monday, Tuesday, Thursday, Saturday, and Sunday. Ibid.

         Fowler also asserts that correctional policies require that hearing impaired inmates have access to the TTY phone equivalent to that of hearing inmates-with the exception that additional time be afforded to the hearing impaired inmates for each call because of the time required by the TTY system. He alleges that he was not permitted to use the TTY phone for the time designated by policy. All other inmates at Cheshire were afforded six 15-minute calls per day during their recreation periods, and Fowler's reasonable accommodation plan created by the ADA coordinator stipulated that he be allowed six 30-minute calls using the TTY phone during his recreation periods. Fowler contends that those 30-minute call allotments do not constitute adequate or equivalent access. Id. at 7 (¶ 21).

         Fowler complained to Erfe about the unequal treatment but his complaints were ignored. He then had his family contact defendant Martucci. Rather than taking action, Martucci merely spoke with Erfe about Fowler's complaints. Id. at 8 (¶ 22).

         On June 25, 2018, Fowler met with Vigor, Taylor, and Carbone in Vigor's office, where they chastised him for filing complaints and having his family file complaints on his behalf. They then placed him in restrictive housing on administrative detention status pending investigation. Ibid. (¶ 23). When Fowler met with defendants Erfe and Guadarrama on June 28, 2018, they “made i[n]nuendos implying” that his restrictive housing placement was a response to his family complaining to the commissioner's office. Id. at 9 (¶ 24).

         Fowler claims that on July 5, 2018, defendant Verdura violated correctional policy by issuing two disciplinary reports to Fowler for the same act. Ibid. (¶ 25). Then on July 9, 2018, Fowler finished serving 14 calendar days on administrative detention status, the maximum, but was not released. Defendants Watson, Peterson, Vigor, Guadarrama and Erfe ordered that he remain in restrictive housing and told him that he would remain in restrictive housing until he entered guilty pleas to both disciplinary charges. Fowler submitted complaints to defendants Semple, Martucci and Quiros but they did nothing. Id. at 10 (¶ 26). Fowler entered guilty pleas to halt the “psychological torture and the extreme duress.” Id. at 10-11 (¶ 27).

         Fowler claims that the standard practice at Cheshire is to sentence an inmate who enters a guilty plea to loss of a privilege for 30 days, but that defendant Wright sanctioned him to loss of phone privileges for 45 days for each disciplinary report, for a total of 90 days, at the direction of Erfe, Vigor, Watson, Peterson, and Guadarrama. Fowler believes that this sanction was imposed on him because he was scheduled to be released in 90 days and this sanction would eliminate any requirement that he be provided access to the TTY phone during the remainder of his sentence. The sanction did not start on June 25, 2018, when Fowler entered restrictive housing, but on July 12, 2018. Id. at 11 (¶ 28).

         Fowler alleges that the conditions in restrictive housing constitute an atypical and significant hardship. His asthma was aggravated by the inability to open the cell window and the clogged vent. Medical staff did not provide his asthma pump for the first 13 days he was in restrictive housing. The cell was filthy. Fowler was forced to sleep on a mattress with minimal cushion. He was not provided shower shoes or personal hygiene products and contracted a foot fungus from showering barefooted. For recreation he was taken to a room only a little larger than his cell. Id. at 11-12 (¶ 29). Defendant Mazurek subjected him to a strip search during which he was required “to lock his knee[]s, bend over at the waist & use his hands to spread open his buttocks . . . in front of numerous officers.” Id. at 20 (¶ 40).

         Fowler additionally requires certain preventive measures to protect him from injury during a seizure. One such measure was a cellmate to notify correctional staff if he had a seizure. No. preventive measures were afforded while he was in restrictive housing. As a result, Fowler suffered numerous injuries when he experienced seizures in his cell. Defendant Disteffano was aware of and ignored this need. Id. at 12 (¶ 30).

         DISCUSSION

         Pursuant to 28 U.S.C. § 1915A, the Court must review a prisoner's civil complaint against a governmental entity or governmental actors and “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” If the prisoner is proceeding pro se, the allegations of the complaint must be read liberally to raise the strongest arguments that they suggest. See Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010).

         In recent years, the Supreme Court has set forth a threshold “plausibility” pleading standard for courts to evaluate the adequacy of allegations in federal court complaints. A complaint must allege enough facts-as distinct from legal conclusions-that give rise to plausible grounds for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Notwithstanding the rule of liberal interpretation of a pro se complaint, a pro se complaint may not survive dismissal if its factual allegations do not meet the basic plausibility standard. See, e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015). My initial review here is without prejudice to the rights of any named defendant to file a motion to dismiss under Rule 12(b) if they do not believe that Fowler has alleged plausible grounds for relief.

         ADA and Rehabilitation Act claims

         Fowler alleges discrimination and retaliation in violation of the ADA and Rehabilitation Act. As an initial matter, I will dismiss these claims insofar as Fowler seeks to assert them against any of the individual defendants. “[N]either Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials.” Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). “Many cases from this and other circuits have held that individuals cannot be held personally liable for damages under the ADA, regardless of which title of the ADA is at issue.” Murray v. Tanea, 357 F.Supp.3d 226, 230 (W.D.N.Y. 2019). Moreover, to the extent that Fowler seeks to proceed under the ADA and Rehabilitation Act against any ...


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