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Green v. Kitchen Manager Art Riffo

United States District Court, D. Connecticut

May 29, 2019

COURTNEY GREEN, Plaintiff,
v.
KITCHEN MANAGER ART RIFFO, KITCHEN SUPERVISOR DOWNEY, Defendants.

          INITIAL REVIEW ORDER

          Charles S. Haight, JR. Senior United States District Judge.

         Plaintiff Courtney Green, currently incarcerated at Osborn Correctional Institution (“Osborn”) in Somers, Connecticut, has filed a pro se complaint under 42 U.S.C. § 1983 against Osborn employees Art Riffo, Kitchen Manager, and Downey, Kitchen Supervisor (herein “Defendants”). See Doc. 1, at 1; Doc. 1-1, at 13 (¶¶ 1-3). In his Complaint, Plaintiff asserts two claims. First, he alleges that Defendants retaliated against him for complaining about their failure to provide him with a high fiber diet. In so doing, he alleges that they violated his right to free speech under the First Amendment. Doc. 1-1, at 19. Second, Plaintiff alleges that Defendants subjected him to “cruel and unusual punishment” under the Eighth Amendment by failing to provide him with a high fiber diet. Id., at 20. For the reasons set forth below, the Court will dismiss the Complaint in part.

         I. STANDARD OF REVIEW

         Pursuant to 28 U.S.C. § 1915A, the Court must review a prisoner's civil complaint against governmental actors and “dismiss . . . any portion of the complaint [that] (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.” 28 U.S.C. § 1915A(a), (b)(1)-(2). Although highly detailed allegations are not required, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The complaint must provide “more than the unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         “[W]hether a complaint states a plausible claim for relief will [ultimately] . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-64. When “well-pleaded factual allegations” are present, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. Factual disputes do not factor into a plausibility analysis under Iqbal and its progeny.

         “Although all allegations contained in the complaint are assumed to be true, this tenet is ‘inapplicable to legal conclusions.'” LaMagna v. Brown, 474 Fed.Appx. 788, 789 (2d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Accordingly, the Court is not “bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted)). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         With respect to pro se litigants, it is well-established that “[p]ro se submissions are reviewed with special solicitude, and ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Matheson v. Deutsche Bank Nat'l Tr. Co., 706 Fed.Appx. 24, 26 (2d Cir. 2017) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam)). See also Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (same); Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after Twombly, though, we remain obligated to construe a pro se complaint liberally.”) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

         Despite being subject to liberal interpretation, a pro se plaintiff's complaint still must “state a claim to relief that is plausible on its face.” Mancuso v. Hynes, 379 Fed.Appx. 60, 61 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Therefore, even in a pro se case, “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation and internal quotation marks omitted). Nor may the Court “invent factual allegations” that the plaintiff has not pleaded. Id.

         II. FACTUAL ALLEGATIONS

         When reviewing a complaint to determine whether it states any “plausible” claim under Iqbal, the court accepts the factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (citing Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994), cert. denied, 513 U.S. 836 (1994)). For purposes of screening, the facts set forth in Plaintiff's complaint are accepted as true.

         In January 2017, Plaintiff began employment at Osborn as a second shift kitchen worker. Doc. 1-1, at 16 (¶ 9). Plaintiff's work shift in the kitchen was from 12:30 p.m. to 6:00 p.m. Id. Defendant Downey was a first shift kitchen supervisor at Osborn and held the rank of CFSS2. Id.; Doc. 1, at 3. Downey's shift usually ended between 12:30 p.m. to 12:45 p.m. Doc. 1-1, at 16 (¶ 9). Plaintiff rarely came in contact with Downey unless Downey worked overtime during the second shift. Id. Defendant Riffo was the Kitchen Manager at Osborn and held the rank of CFSS3. Doc. 1, at 3; Doc. 1-1, at 13 (¶2).

         On July 28, 2017, Plaintiff filed a Level 1 Grievance complaining that Kitchen Supervisor Wilcox had instructed an inmate to “continue to serve bread off of a bread rack” to the general inmate population “after finding a roach in it.” Doc. 1-1, at 1-2. Plaintiff also complained that on another occasion, Wilcox had ordered an inmate to serve the general prison population juice “after being told and seeing for himself” that there were “rodent droppings on multiple racks of juice.” Id. Plaintiff requested that Riffo and Wilcox comply with Administrative Directive 10.18 and “stop putting” the health of inmates in the prison population “at risk [due] to unsafe and unsanitary conditions.”[1] Id., at 2.

         On September 29, 2017, Acting Warden Rodriguez denied Plaintiff's grievance, stating that the grievance was “filled with vague and unsubstantiated allegations” and “failed to provide any supporting documentation.” Id. Subsequently, on December 4, 2017, a district administrator denied Plaintiff's appeal of the grievance, stating that “[i]nmate meals are prepared, delivered, and served in accordance with Administrative Directive 10.18 Food Services.” Id., at 3.

         On September 22, 2017, Dr. Breton prescribed Plaintiff a high fiber diet because he suffered from a “chronic anal fissure.” Id., at 14 (¶ 3). At one meal on November 27, 2017, Kitchen Supervisor Downey instructed a kitchen worker to serve Plaintiff hot dogs. Id. (¶ 1). Plaintiff “thought that hot dogs were in contrast to his high fiber diet.” Id. (¶ 2). Plaintiff then inquired of Downey whether he was aware of an October 2017 revision in the high fiber diet (to be served to inmates within the Department of Correction), which eliminated “sausages of any sort.” Id. Plaintiff alleges that Downey responded by instructing Plaintiff to “take the hot dog tray and go.” Id.

         On November 28, 2017, Plaintiff wrote to Riffo and also met with Dr. Breton regarding his high fiber diet. Id. (¶¶ 1, 3). In his letter to Riffo, Plaintiff indicated that during “first shift on Tuesdays (training days), [he had] not [been] receiving his therapeutic high fiber diet.” Id. (¶ 1). Plaintiff also informed Riffo that Downey had instructed a kitchen worker to serve Plaintiff hot dogs as part of his meal on November 27, 2017. Id.

         During his appointment with Dr. Breton, Plaintiff indicated that he had not been receiving his high fiber diet on Tuesdays for the last two months. Id. (¶¶ 3-4). Plaintiff complained that the lack of a high fiber diet on these days had “exacerbat[ed] his chronic anal fissure by causing him [to experience] constipation, pain and bleeding from his rectum.” Id. (¶ 4). After meeting with Plaintiff that day, Dr. Breton sent an email to Riffo, Health Services Administrator Richard Furey, and Dr. Castro, informing them that during Plaintiff's first shift on Tuesdays, that is the “only time” he is receiving a “regular tray” instead of being given his high fiber diet. Id., at 10, 15 (¶ 5).

         On November 29, 2017, Plaintiff cut his right thumb during his shift in the kitchen. Id., at 16 (¶ 11). On November 30, 2017, a prison official issued Plaintiff an out-of-work pass for five days, November 30 to December 4, 2017. Id., at 5, 16 (¶ 11). Plaintiff was not scheduled to return to work until second shift on December 4, 2017. Id., at 16 (¶ 12).

         On December 4, 2017, Downey arrived in Plaintiff's housing unit with a CN100101 performance evaluation form and instructed Plaintiff that he must sign the form or be “terminated from his kitchen job with malice.” Id., at 15 (¶ 6). The evaluation referenced Plaintiff's November 27, 2017, complaint to Downey about receiving hot dogs, an item that Plaintiff believed was not part of his high fiber diet. Id. Plaintiff refused to sign the evaluation because it was not based on his work attendance, work performance, or the relevant Administrative Directives.[2] Id. (¶ 7). Downey then informed Plaintiff that he was terminated from his kitchen job for refusing to sign the evaluation. Id. As a result of his negative evaluation on the CN100101 form, Plaintiff was precluded from earning Risk Reduction Earned Credit (“RREC”), increments of time off of his prison sentence. Id., at 16 (¶ 13).

         Plaintiff asserts that he has been incarcerated since July 25, 2008, and has remained disciplinary report free since April 2009. Id., at 15 (¶ 8). Until the issuance of the negative performance evaluation (CN100101) by Downey on December 4, 2017, Plaintiff had never received a negative performance evaluation (CN100101) regarding a job performed during his confinement within the Department of Correction. Id.

         Shortly after Downey issued the negative work evaluation, Plaintiff wrote to Riffo via “inmate request.” Id., at 17 (¶ 18). Plaintiff stated that, rather than being related to work performance, the reason Downey had written the evaluation was because Plaintiff had complained to Riffo about Downey serving Plaintiff hot dogs. Id. Riffo did not respond to Plaintiff's request. Id. Plaintiff asserts that “[u]pon information and belief, ” Riffo, as Downey's supervisor, must have “approved of and signed” the poor work evaluation Downey issued to Plaintiff. Id., at 18 (¶ 19).

         On December 11, 2017, Plaintiff filed a Level 1 Grievance stating that he had written to Riffo on November 28, 2017, regarding the fact that during first shift on Tuesdays, he was not receiving his high fiber diet. Id., at 16 (ΒΆ 10). In that grievance, he also wrote that during a meal on November 27, 2017, Downey had given him hot dogs, and on December ...


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