Pagan v. Dougherty

          INITIAL REVIEW ORDER

          VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE.

         On October 9, 2018, the plaintiff, Luis A. Pagan (“Plaintiff” or “Pagan”) an inmate currently confined at Northern Correctional Institution (“NCI”) in Somers, Connecticut, filed a complaint pro se pursuant to 42 U.S.C. § 1983, against six Department of Correction (“DOC”) officials in their individual and official capacities: Captain Dougherty, Lieutenant Tamarro, Lieutenant King, District Administrator Maldonado, Commissioner Semple, and Correction Officer Kudzal (collectively “Defendants”) Compl. (Dkt. No. 1).

         Pagan claims that Defendants violated his rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article First, Sections 6 and 20 of the Connecticut Constitution. Id. at 11-13. He seeks monetary, injunctive, and declaratory relief. Id. at 1.

         Plaintiff also filed a motion to proceed in forma pauperis . On October 12, 2018, Magistrate Judge William I. Garfinkel granted the plaintiff's motion to proceed in forma pauperis. [Dkt. No. 8]

         Plaintiff also filed a motion for preliminary injunctive relief and a motion for appointment of counsel. [Dkt. Nos. 3 and 4, respectively] These motions are pending before the court.

         For the following reasons, the complaint is dismissed in part and the motions are denied.

         I. Standard of Review

         Pursuant to 28 U.S.C. § 1915A, this 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. 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.” Bell Atlantic, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).

         II. Factual Allegations

         At approximately 9:50 a.m. on June 9, 2017, while he was confined in Cell 117 of the G-pod housing unit at the Corrigan-Radgowski Correctional Institution (“CRCI”) in Uncasville, Connecticut, unit officers instructed Plaintiff that “intel officers” wanted to speak with him. Compl. (Statement of Facts) ¶ 1. The unit officers directed Plaintiff to their office outside the G-pod unit. Id. There, Captain Dougherty and Lieutenant Tamarro ordered Plaintiff to sit down and then proceeded to question him about gang activity in his unit. Id. at ¶¶ 2-3. Plaintiff told Dougherty and Tamarro that he is not a gang member and was not involved in any gang activities. Id. Both defendants laughed, showed Pagan a pile of letters that they claimed were Security Risk Group (“SRG”) material, and asked him, “Do you know anything about those?” Id. at ¶ 4. Plaintiff told them that he had nothing to do with the letters. Id. The defendants then informed the plaintiff that the letters, which were SRG material, were found inside Cell 219, which housed another inmate named William Pabon, and that Pabon admitted to possessing them. Id. at ¶ 5.

         Throughout the interview, Dougherty and Tamarro attempted to intimidate Plaintiff by accusing him of authoring the letters. Compl. ¶ 6. They argued that they could pin the evidence on him because he was a former member of the Bloods gang. Id. Dougherty said that Plaintiff's alias “Two Pound” was found in the letters and that, consequently, he would be issuing Plaintiff a disciplinary report (“DR”) for the SRG material found in Pabon's possession. Id. at ¶ 7.

         Pagan reaffirmed that he had nothing to do with any SRG material, that he is not a gang member, and that the alias “Two Pound” is a common name. Compl. ¶ 8. He told Dougherty that he would not admit guilt to the DR, nor would be become a “jailhouse snitch.” Id. Dougherty replied, “If it ha[s] nothing to do with you, then help yourself by helping us.” Id. at ¶ 9. Plaintiff refused and told Dougherty that it was his job to investigate the matter. Id. at ¶ 10. Dougherty ended the interview by telling Plaintiff, “We gave you an opportunity to confess. [W]e know you authored the paperwork so . . . you'll be placed in segregation pending a [DR] for SRG . . . affiliation, ” a Class 2 offense. Id. at ¶ 11.

         Dougherty concluded there was sufficient basis to charge Plaintiff with A violation of DOC Administrative Directive 9.5, § 12(Z) and issued Pagan a DR for SRG affiliation. Plaintiff was placed in a restrictive housing unit (“RHU”) pending resolution. Compl. ¶¶ 12-13, 19. The DR stated that inmate Pabon was found to be in possession of several SRG (Bloods gang) material and that, after further investigation, it was determined that the plaintiff authored the material in an effort to recruit Pabon into the gang. Id. at ¶ 14; Pl.'s Ex. 1 (Dkt. No. 1 at 17).

         The DR does not state the exact location where the SRG material was found. Compl. ¶ 14. The plaintiff was not given advanced notice of the hearing on the DR, nor was he provided with a SRG Determination Form, as required by DOC Administrative Directive 6.14, § 7(A).^[1] Id. at ¶ 17.

         On June 12, 2017, Disciplinary Investigator Kudzal came to Plaintiff's cell in the RHU in order to retrieve the his two-page, handwritten statement, which would be used in support of his defense at the DR hearing. Compl. ¶ 20. Plaintiff told Kudzal that he waived his right to an advocate for the hearing but that he wanted a written statement from Pabon, who possessed the SRG material. Id. at ¶ 21. Kudzaul told Plaintiff that he would obtain a statement from Pabon. Id.

         On June 14, 2017, Pagan gave Kudzal a second written statement to use in his defense at the hearing. Compl. ¶ 22. Kudzal then informed Plaintiff that he had retrieved a written statement from inmate Pabon. Id. Plaintiff asked Kudzal what Pabon's statement revealed. Id. at ¶ 23. Kudzal said that he could not give Plaintiff a copy of inmate Pabon's statement but that it acknowledged that Plaintiff had nothing to do with the SRG material found in Pabon's cell. Id.

         Plaintiff's DR hearing was scheduled for June 15, 2017 before Lieutenant King. Compl. ¶ 24. At the hearing, King read the report submitted by Dougherty and other incident reports which were inconsistent with Dougherty's statements. Id. at ¶ 25. This “misled the plaintiff in preparing for his defense.” Id.

         King then asked Plaintiff for his plea to the DR, to which Pagan responded, “Not Guilty.” Compl. ¶ 26. Plaintiff asked King to review the statements written by Pabon and him, but King refused, claiming that the staff members' reports were sufficient and outweighed Plaintiff's evidence. Id. at ¶ 27. Plaintiff argued that the DR was vague and that the DOC does not have experts trained to analyze the handwriting of the SRG material to determine whether the plaintiff in fact authored it. Id. at ¶ 28.

         King then stated that the evidence implicating Plaintiff was the discovery of the alias name “Two Pound” in the material, but Plaintiff argued that he could not be found to be affiliated with the SRG solely based on the belief that the name “Two Pound” referred to him. Compl. ¶¶ 29-30. He told King that the DR fails to reveal any other evidence showing that he had authored the SRG material. Id. at ¶ 31.

         King found Pagan guilty of SRG affiliation and designated him as a member of the Bloods gang. Compl. ¶ 32. In her written disposition, King stated that her basis for the finding was “staff observation and documentation submitted.” Id. She imposed a sanction of 730 days (2 years) in segregation, 15 days of punitive segregation, 60 days loss of visits, and 60 days loss of commissary. Id. at ¶ 33. Thereafter, Plaintiff was officially designated as a Bloods gang member and transferred to NCI, where he entered Phase 1 of the SRG program. Id. at ¶ 34.

         On June 16, 2017, Plaintiff filed an appeal of the DR finding to District Administrator Maldonado. Compl. ¶ 35. Maldonado responded to the appeal on July 6, 2017 but failed to correct what the plaintiff claimed were numerous due process violations in the DR proceedings at CRCI. Id. In support of his decision affirming the DR finding, Maldonado wrote:

The Hearing Officer's finding was reasonable based on information and evidence presented at a formal hearing. Documentation submitted to the presiding Hearing Officer substantiates that after a random cell shakedown was conducted in your cell (G-pod 219)^[2] on your bunk was a piece of paper with what appeared to be instructions on how to perform hand signals and a manila envelope was also found with what appeared to be additional SRG material. After an extensive facility investigation, it has been determined that you are affiliated with the SRG “Bloods.” Therefore, it has been determined that you meet the criteria, as described in A.D. 6.14, Security Risk Group.

Pl.'s Ex. 2 (Dkt. No. 1 at 18).

         Plaintiff appealed the DR finding and Maldonado's decision to Commissioner Semple. Compl. ¶ 36. Director of Security Christine Whidden responded to Plaintiff's appeal, stating that Plaintiff was the author of the SRG material and that he is the only inmate known to be ...