United States District Court, D. Connecticut
JAMES L. PENA, Plaintiff,
COOK, et al., Defendants.
INITIAL REVIEW ORDER
A. Dooley United States District Judge.
James L. Pena (“Pena”), currently confined at
Corrigan-Radgowski Correctional Center in Uncasville,
Connecticut, filed this complaint pro se under 42
U.S.C. § 1983. In his jurisdictional statement, Pena
also references 42 U.S.C. § 1985 and § 1986. Pena
asserts federal law claims for deliberate indifference to
safety and failure to protect him from harm, retaliation, and
supervisory liability against defendants, Commissioner Cook,
Security Risk Group (“SRG”) Coordinator Papoosha,
Warden Cocerrella, Deputy Warden Cotta, SRG Unit Manager
Michaud, Disciplinary Reporting Officer Nemeth, Director of
Offender Classification and Population Management
Maiga, and Director of Security A. Santiago. He
also asserts state law claims for negligence and false
imprisonment. Pena seeks damages and injunctive relief
against the defendants in their individual and official
capacities. The complaint was received on May 30, 2019, and
Pena's motion to proceed in forma pauperis was
granted on June 19, 2019.
section 1915A of title 28 of the United States Code, the
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. Id. In reviewing a pro se
complaint, the Court must assume the truth of the
allegations, and interpret them liberally to “raise the
strongest arguments [they] suggest.” Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007). see also
Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010)
(discussing special rules of solicitude for pro se
litigants). Although 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 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.
November 28, 2018, Pena was sentenced to a five-year term of
imprisonment on charges of sexual assault in the second
degree, violation of probation, and possession of a firearm.
Doc. No. 1, ¶ 24. The next day, he was transferred to a
much more restrictive housing unit at Walker Correctional
Institution (“Walker”). Id., ¶ 25.
Pena requested placement in protective custody
(“PC”) because he had been assaulted by an SRG
member shortly before his transfer. Id.,
¶¶ 26, 23. On January 6, 2019, Pena was placed on
“rec alone status.” Pena considers this status
similar to PC within the SRG block at Walker. The November
14, 2018 assault was based on Pena being labeled a
“plate, ” his sexual offense, and the fact that
he was not an active gang member. Id., ¶ 27.
February 4, 2019, Pena was transferred to Massachusetts on
pending drug charges. He was housed in general population
there for about three weeks. Id., ¶ 28. Pena
returned to Connecticut on February 25, 2019 and was placed
in a Restrictive Housing Unit (“RHU”) at Walker.
The placement was because Pena “never completed the
Program on my prior sentence.” In RHU, Pena was
required to undergo purposeless strip searches, eat in his
cell, and recreate outside in harsh weather. He also was
permitted only three phone calls per week. Pena was required
to endure these conditions even though he had no disciplinary
charges and no SRG ticket or hearing. Id., ¶
told the unit manager at Walker about threats and extortion
attempts and requested PC placement. Pena was placed on rec
alone status for his safety. Id., ¶ 30. On
March 28, 2019, Pena was removed from rec alone status and
transferred to Corrigan-Radgowski Correctional Center
(“Corrigan”). This was the facility where Pena
was assaulted as a pretrial detainee. Id., ¶31.
Pena believes that defendants Maiga and Santiago removed him
from rec alone status and transferred him to Corrigan in
retaliation for his filing a federal lawsuit against them.
Id., ¶ 32.
March 29, 2019, Pena submitted an Inmate Request to
defendants Cook, Papoosha, Michaud, Cocerrella, and Cotta
stating that his life was in danger because he was still
labelled a “plate.” He had received multiple
threats at Corrigan. Pena asked to be returned to Walker,
placed on rec alone status, or placed in PC. Id.,
¶ 33. Only defendant Michaud responded to the request.
Id. On April 2, 2019, defendant Michaud stated, that
he had reviewed surveillance footage and it appeared that
Pena was “socializing fine.” He advised Pena to
tell him if things changed. Id., ¶ 34.
April 12, 2019, Pena submitted a second request to defendants
Cocerrella, Cotta, Michaud, and Cook stating that his life
was being threatened and he was being extorted. He reported
that gang members knew that he was a “plate, ”
was previously on rec alone status, and had a sex charge.
Pena said that it was only a matter of time before he was
assaulted again. He was afraid for his life and requested PC
placement or rec alone status to ensure his safety. In
response, defendant Michaud visited Pena and told him to
“stop b**ching and man up.” Id., ¶
April 28, 2019, Pena was assaulted in the unit day room by a
member of the SRG Bloods. Id., ¶ 41. He was
struck repeatedly. As a result, Pena suffers severe headaches
and back pain, PTSD, anxiety, and paranoia. Id.,
¶ 43. Pena told defendant Nemeth, the disciplinary
investigator, that he had warned correctional officials of
the threat and explained that he was struck from behind and
assaulted by an inmate three times his size. However,
defendant Nemeth persuaded Pena to plead guilty to the
disciplinary ticket by threatening more severe sanctions if
he did not. Id., ¶ 44. Pena continues to be
housed at Corrigan and has not been placed in PC or on rec
alone status. Id., ¶ 46.
received a disciplinary report for submitting two grievances.
The first grievance complained that defendants Michaud,
Cocerrella, and Cotta failed to fulfill their duties, and the
second grievance stating that defendants Cook, Cocerrella,
Cotta, and Michaud ignored a potential threat to him.
Pena's sanctions on this charge included loss of 10 days
of good time credit. Id., ¶ 47.
asserts seven claims: (1) all defendant subjected him to
unconstitutional conditions of confinement in violation of
the Eighth Amendment; (2) defendants Santiago and Maiga
retaliated against him for exercising his First Amendment
rights; (3) defendants Cook, Cocerrella, Cotta,
Maiga, Santiago, and Michaud subjected him to excessive and
purposeless strip searches in violation of the Fourth
Amendment, (4) defendants Cook, Cocerrella, Cotta, Maiga,
Santaigo, Michaud, and Papoosha failed to protect him from
harm and were deliberately indifferent to his safety as
actors and supervisors in violation of the Eighth Amendment,
(5) defendants Cook, Papoosha, Cocerrella, Cotta, Michaud,
and Maiga were negligent in performing their duties, (6)
defendant Nemeth violated his Eighth Amendment rights, and
(7) all defendants subjected him to false imprisonment under
state law by confining him in the RHU under harsh conditions.
includes in this case allegations relating to his confinement
as a pretrial detainee. All claims concerning his
classification and confinement as SRG while a pretrial
detainee, the conditions of his confinement, violation of
privacy through excessive strip searches and denial of access
to the courts as a pretrial detainee, are pending before this
court at Pena v. Semple, No. 3:19-cv-261 (KAD). Pena
has a second pending case, Pena v. Aldi, No.
3:19-cv-124 (KAD), in which he asserts claims for his
treatment from January 2018 through November 2018, including
failure to protect him from assault, again while a pretrial
detainee. To the extent that Pena attempts to bring, in this
action, the same claims already asserted in his two other
pending actions, those claims are barred by the prior pending
action doctrine. See, Curtis v. Citibank, N.A., 226
F.3d 133, 138 (2d Cir. 2000). Unless there are special
circumstances giving priority to the second case, the
district court should dismiss the second case as duplicative
of the earlier case. Taylor v. Rodriguez, 238 F.3d
188, 197 (2d Cir. 2001). The district court may apply the
prior pending action doctrine to claims within a lawsuit.
See Ziemba v. Clark, 167 Fed.Appx. 831, 832 (2d Cir.
2006) (district court properly dismissed claims included in
previously filed lawsuit under prior pending action
Pena attempted to amend his complaint in Pena v.
Semple, to add the defendants named herein and to assert
claims arising after he was sentenced. The Court denied leave
to amend because Pena v. Semple concerned Pena's
time as a pretrial detainee and involved different
defendants. The Court advised Pena that he could pursue his
claims as a sentenced inmate in a separate action. See
Pena v. Semple, No. 3:19-cv-261 (KAD) (Doc. No. 14,
Order re Amended Complaint and Motion for TRO, filed May 17,
2019). Accordingly, any claims included herein stemming from
Pena's time as a pretrial detainee are dismissed.
Indifference to Safety/Failure to Protect
asserts that defendants Cook, Cocerrella, Cotta, Maiga,
Santiago, Michaud, and Papoosha failed to protect him from
harm and were deliberately indifferent to his safety, as
actors and supervisors, in violation of the Eighth Amendment.
Specifically, he alleges that after his transfer to Corrigan,
he submitted a request to defendants Cook, Papoosha, Michaud,
Cocerrella, and Cotta explaining that he was in danger and
had received threats. Defendant Michaud responded but
disagreed with Pena's assessment. Pena submitted a second
request to defendants Cook, Michaud, Cocerrella and Cotta.
Again, defendant Michaud responded to the request and ignored
his complaints. Doc. No. 1, ¶¶ 33-35. Pena was
assaulted about two weeks after the second request.
Id., ¶ 41.
state a claim for deliberate indifference to health or safety
or failure to protect him from harm, Pena must show that the
conditions of his confinement posed a substantial risk of
serious harm and that the defendants were deliberately
indifferent to his safety. See Farmer v. Brennan,
511 U.S. 825, 834 (1994). Deliberate indifference exists when
the defendant knows of and disregards an excessive risk to
the plaintiff's safety. See Id. at 837;
Bridgewater v. Taylor, 698 F.Supp.2d 351, 357
(S.D.N.Y. 2010) (explaining that defendants must be aware of
facts supporting an inference that harm would occur and must
actually draw that inference).
alleges that he sent inmate requests informing the defendants
of the threats to his safety. Defendant Michaud acknowledged
receipt of the requests but disregarded the threats.
Defendants Cook, Cocerrella, Cotta and Papoosha are
supervisory officials. Sending them inmate requests is
sufficient at this stage of litigation to support an
inference that they received and read the requests and,
therefore, were aware of Pena's concerns. See Grullon
v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013)
(at pleading stage, dismissal for lack of allegations that
supervisory official received and read letter not warranted).
After these defendants took no action in response to his
requests, Pena was assaulted. These allegations are
sufficient to ...