United States District Court, D. Connecticut
INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. §
JEFFREY ALKER MEYER, UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
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.
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).
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).
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).
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
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 (¶
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 knees, bend over
at the waist & use his hands to spread open his buttocks
. . . in front of numerous officers.” Id. at
20 (¶ 40).
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).
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).
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.
and Rehabilitation Act claims
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 ...