Pena v. Cook

          INITIAL REVIEW ORDER

          Kari A. Dooley United States District Judge.

         Preliminary Statement

         Plaintiff, 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^[1], 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.

         Standard of Review

         Under 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.

         Allegations^[2]

         On 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.

         On 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., ¶ 29.

         Pena 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.

         On 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.

         On 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., ¶ 35.

         On 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.

         Pena 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.

         Discussion

         Pena 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]; (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.

         Pena 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 doctrine).

         Notably, 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.

         Deliberate Indifference to Safety/Failure to Protect

         Pena 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.

         To 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).

         Pena 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 ...