United States District Court, D. Connecticut
INITIAL REVIEW ORDER
Charles S. Haight, JR. Senior United States District Judge.
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.
STANDARD OF REVIEW
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,
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).
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.
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).
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)).
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.
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.
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).
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.” Id., at 2.
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.
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.”
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.
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 (¶
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).
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. 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).
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.
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).
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
(¶ 10). In that grievance, he also wrote that during a
meal on November 27, 2017, Downey had given him hot dogs, and
on December ...