United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION FOR SUMMARY
R.UNDERHILL, UNITED STATES DISTRICT JUDGE
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.
named defendants, Commissioner Scott Semple, SRG Director
John Aldi,  Warden Allison Black, Deputy Warden Denise
Walker, Lieutenant Papoosha, Correctional Officer John Doe,
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.
Standard of Review
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).
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).
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).
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.
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.
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.,
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.
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.
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.
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.
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.
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.
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.
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.
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 ...