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Andrews v. Gates

United States District Court, D. Connecticut

July 8, 2019

DION ANDREWS, Plaintiff,
GATES, et al., Defendants.



         Dion Andrews commenced this civil rights action asserting claims for violation of his rights under the Eighth and Fourteenth Amendments and the Americans with Disabilities Act. In the Initial Review Order, filed on November 21, 2017, I dismissed the Americans with Disabilities Act claim and stated that the case would proceed on the Eighth Amendment claims for deliberate indifference to serious mental health needs and deliberate indifference to safety as well as the claim for supervisory liability. I also permitted the case to proceed on Andrews' Fourteenth Amendment due process claim relating to his classification as a Security Risk Group (“SRG”) inmate and resulting confinement in SRG protective custody. ECF No. 10 at 11.

         The named defendants, Commissioner Scott Semple, SRG Director John Aldi, [1] Warden Allison Black, Deputy Warden Denise Walker, Lieutenant Papoosha, Correctional Officer John Doe, [2] and Counselor Ferreira have moved for summary judgment. Andrews' opposition was due on or before April 23, 2019. Although Andrews was advised of the time within which he should respond to the motion for summary judgment and the contents of a proper response, Notice to Pro Se Litigant, ECF No. 50-3, he has filed neither opposition papers nor a motion for extension of time within which to do so. For the reasons that follow, the defendants' motion is granted with respect to all defendants except Officer Hector Figueroa.

         I. Standard of Review

         A motion for summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; see also Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113-14 (2d Cir. 2017). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Nick's Garage, 875 F.3d at 113-14 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Which facts are material is determined by the substantive law. Anderson, 477 U.S. at 248. “The same standard applies whether summary judgment is granted on the merits or on an affirmative defense ….” Giordano v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).

         The moving party bears the initial burden of informing the court of the basis for its motion and identifying the admissible evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He cannot “‘rely on conclusory allegations or unsubstantiated speculation' but ‘must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.'” Robinson v. Concentra Health Servs., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). To defeat a motion for summary judgment, the nonmoving party must present evidence that would allow a jury to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         Although the court is required to read a self-represented “party's papers liberally and interpret them to raise the strongest arguments that they suggest, ” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015), “unsupported allegations do not create a material issue of fact” and do not overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

         II. Facts[3]

         In March 2017, Andrews was confined at BCC Correctional Center (“BCC”). Lieutenant Papoosha was the intelligence administrative lieutenant for BCC and the unit manager for unit 38B. ECF No. 50-2, ¶ 2. Unit 38B was a specialized unit that housed inmates who were members of an SRG and were also on protective custody status. Id., ¶ 3. Protective custody status signifies that an inmate must be kept separated because he has been threatened by other inmates. Id., ¶ 4.

         Unit 38B is the only housing unit within the Department of Correction designated to house SRG inmates on protective custody status. Id., ¶ 5. Those inmates are referred to as on “dual status.” Id., ¶ 6. Unit 38B consists of two tiers with twelve cells on each tier. One tier, referred to as “5-corridor, ” houses protective custody inmates. The other tier, referred to as “6-corridor, ” houses dual-status inmates. Id., ¶ 7.

         Andrews and Rivera were both members of the SRG Bloods and both were on protective custody status. Thus, they both were housed in Unit 38B, 6-corridor. Id., ¶ 8. Andrews stated in his deposition that he considered Rivera his closest friend in prison and has spoken to him multiple times on the phone since Rivera discharged from custody. Id., ¶¶ 9-10.

         Andrews and Rivera had a separation profile as a result of a January 2017 incident and were on “keep separate” status in March 2017. Id., ¶ 11. The January incident involved Andrews pushing and punching Rivera when Rivera knocked chess pieces over, refused to pick them up, and threw food at Andrews. Id., ¶ 12. The separation profile is determined by Population Management while the “keep separate” status is determined in-house. The result of the separation profile and “keep separate” status is that Andrews and Rivera must be kept separated and cannot be out of their cells in the housing unit at the same time. Id., ¶ 11.

         Andrews stated at his deposition that he and Rivera had gotten into fights over the years but always “patched it up” and remained friends. Id., ¶ 13. Andrews said that they remained “mad at each other a little bit” after the January 2017 incident but had patched things up and were still friends. Id., ¶ 14.

         Although Andrews and Rivera had a separation profile and “keep separate” status, they continued to be housed in Unit 38B because there was no other housing unit within the Department of Correction authorized to house them. Id., ¶ 15. Lieutenant Papoosha designed a plan to prevent inmates like Andrews and Rivera from being out of their cells at the same time. Id., ¶ 16. The dual status tier was divided into two groups. Cells 1-6 were in Group 1, and cells 7-12 were in Group 2. Inmates from only one of the groups were permitted out of their cells at any time. Id., ¶ 17. Andrews stated in his deposition that he did not physically interact with Rivera from the January 2017 incident until the March 6, 2017 incident underlying this action. Id., ¶ 18. During that time, however, they had friendly conversations from cell-to-cell and Rivera never threatened Andrews. Id., ¶ 19.

         On March 6, 2017, Andrews was in Group 2 and Rivera was in Group 1. Rivera was on confined-to-quarters status because of a recent disciplinary report. He was only allowed out of his cell by himself and could not leave his cell even with other inmates in his group. Id., ¶ 20. Lieutenant Papoosha posted recreation schedules, “keep separate” information, and other relevant information regarding the inmates in the Unit 38B control bubble. On March 6, 2017, the “keep separate” information for Andrews and Rivera was posted in the control bubble. Id., ¶ 21.

         On March 6, 2017, staff observed Rivera assaulting Andrews in the shower area. Id., ¶ 22. A code was called. Lieutenant Papoosha responded to the code. Id., ¶ 23. Although Andrews and Rivera were not supposed to be out of their cells at the same time, the control bubble officer, John Doe, had permitted both inmates to be out of their cells at the same time. Id., ¶ 24. Rivera was out of his cell taking a shower during his confined-to-quarters recreation time. He asked Officer Doe for an additional ten minutes in the shower and the officer agreed. While Rivera was finishing his shower, Officer Doe released Group 2 for their unit recreation time. Andrews was in Group 2. Id., ¶ 25.

         Officer Doe should not have released Group 2 until he secured Rivera in his cell. Id., ¶ 26. The incident occurred during the first shift. Lieutenant Papoosha recalls that Officer Doe normally worked the third shift and was fairly new to BCC. Because third shift officers do not supervise recreation, Officer Doe would not have been as familiar with the inmates in the unit as the first shift officers were. Id., ¶ 28. Officer Doe acknowledges his error in the incident report. Id., ¶ 29.

         In March 2017, Counselor Ferreira was working as a counselor in Unit 38B. Her duties included responding to inmate request forms and arranging legal calls. Id., ¶ 31. Because she was not a custody officer, she was not responsible for inmate movement in and out of the cells. Id., ¶ 32. The block officer is responsible for releasing inmates from their cells and requiring them to return to their cells. Id., ¶ 33.

         Counselor Ferreira had just finished touring the unit. Id., ¶ 4. When the incident occurred, Counselor Ferreira was in the unit, standing just outside the control bubble. After observing the assault, Counselor Ferreira realized that Rivera had not been in his cell when she toured the unit. She did not know that he was still in the unit because female officers do not inspect the showers when they tour a housing unit. She did not know that Andrews and Rivera were out of their cells in the unit at the same time. Id., ¶ 35. Rivera could have been outside of the unit. For example, he could have been in the medical unit, the lieutenant's officer, or on a legal visit. Id., ¶ 36. Counselor Ferreira recalls the code being called but, as a counselor, she did not respond to the code. Id., ¶ 37.

         On June 23, 2017, Andrews was transferred from BCC to Northern Correctional Institution (“Northern”). Andrews was assigned to the Administrative Segregation Program (“AS”) at Northern because he violently ...

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