United States District Court, D. Connecticut
INITIAL REVIEW ORDER
R. Underhill, United States District Judge.
plaintiff, Derrick Gilliam (“Gilliam”), is
incarcerated at Allenwood United States Penitentiary in White
Deer, Pennsylvania. He has filed a civil rights action
against Commissioner Semple, Warden Black, Lieutenants
Hernandez, Bishop and Allen, Correctional Officers Rivera,
Neave, McCarthy, Smudin, Finnucan, Gargano and John Does 1-10
and Jane Does, Nurses Anne Marie and Jane Doe, State Trooper
Costella, the Connecticut State Police, the Connecticut
Department of Correction and University of Connecticut Health
Center (“UCONN”). He alleges that the defendants
violated various of his constitutional rights during his
confinement at Bridgeport Correctional Center from September
2, 2016 to October 26, 2016. For the reasons set forth below,
the complaint is dismissed in part.
Standard of Review
Section 1915A of Title 28 of the United States Code, I must
review prisoner civil complaints and dismiss any portion of
the complaint that is frivolous, malicious, or 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. 28 U.S.C. § 1915A. Although detailed allegations
are not required, the complaint must include sufficient facts
to afford the defendants fair notice of the claims and
grounds upon which they are based and to demonstrate a
plausible right to relief. Bell Atl. Corp. 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. 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 Am.,
723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006)); see also Tracy v. Freshwater, 623 F.3d 90,
101-02 (2d Cir. 2010) (discussing special rules of solicitude
for pro se litigants).
September 19, 2016, Gilliam was confined in the
“Memorial I Unit” at Bridgeport Correctional with
approximately sixty other inmates. See Am. Compl. at
7 ¶ 2. During inmate count, Gilliam left his bunk to use
the bathroom. See Id. An officer informed Gilliam
that he had committed a serious offense. See Id. The
officer called a lieutenant to come and remove Gilliam from
the unit. See id.
Gilliam reached Lieutenant Bishop's office, he pleaded to
be permitted to return to Memorial Unit. See Id.
Lieutenant Bishop directed an officer to escort Gilliam to
the Admitting and Processing area (“A&P
area”). See Id. ¶ 3. The A&P area
contained five holding cells. See id.
Officers Finnucan, Smudin and Gargano met Gilliam in the
A&P area. See Id. at 8 ¶ 4. Those officers
directed Gilliam to enter one of the cells and informed
Gilliam that they were going to rough and fuck him up.
See Id. When Gilliam refused to enter the cell,
Officer Finnucan put his arm around Gilliam's neck and
began to choke him while Officers Smudin and Gargano dragged
him into the cell. See Id. ¶ 5. Officer
Finnucan let Gilliam go after a few seconds and Gilliam fell
to the floor. See Id. Gilliam has a severe asthma
condition that requires him to use a nebulizer breathing
treatment every day. See Id. After being released
from the chokehold, Gilliam was having trouble breathing.
See Id. He pleaded with the officers to call the
medical department so that he could get his asthma pump.
time later, Lieutenant Bishop and Officer Rivera placed
Gilliam in handcuffs and escorted him to the disciplinary
unit across from the A&P area. See Id. at 9
¶ 6. Lieutenant Bishop did not think it was safe to
confine Gilliam in the disciplinary unit and escorted him to
the medical department. See id.
examined Gilliam and deemed his condition to be an emergency.
See Id. ¶ 7. She administered a
breathing/nebulizer treatment to Gilliam. See Id.
The nurse noted that Gilliam had informed her that his asthma
attack had been brought on by officers assaulting him and
placing him in a chokehold. See Id. The nurse
reported to Lieutenant Bishop that Gilliam needed to remain
in the infirmary for twenty-four hours. See Id.
Gilliam filed a grievance regarding the conduct of
Correctional Officers Finnucan, Smudin and Gargano. See
October 6, 2016, Gilliam was confined in Unit 37B at
Bridgeport Correctional. See Id. at 10 ¶ 8. He
went to the medical department to receive his medication and
a nurse accused him of putting one of his pills into a pocket
in his pants. See Id. ¶¶ 8-9. Officer
Miller informed the nurse that he had observed Gilliam take
all of his medication and had checked his mouth and hands
after he took the medication. See Id. ¶¶
9-10. The nurse insisted that Gilliam had put a pill in his
pocket. See Id. Officer Miller directed Gilliam to
remove everything from his pockets and patted Gilliam down.
See Id. at 11 ¶ 10. Officer Miller did not find
a pill in Gilliam's pants or on his person. See
Neave was walking by during the pat down search and suggested
that Officer Miller check Gilliam's pant leg. See
Id. ¶ 11. As Officer Miller instructed Gilliam that
he was free to leave, Officer Neave pushed Gilliam against
the wall causing Gilliam to hit his head. See Id.
One week prior to that incident, Gilliam had filed a
complaint against Officer Neave pursuant to the Prison Rape
Elimination Act (“PREA”). See Id. at 12
¶ 11. Gilliam pleaded with Officer Neave not to hurt him
and announced that he wanted to file a complaint against
Officer Neave. See Id. Lieutenant Hernandez came
running out of his office, pushed Gilliam against the wall,
placed handcuffs on Gilliam's wrists and instructed
Officer Doe #1 to escort Gilliam to the A&P area. See
Id. ¶ 12.
arriving at the A&P area, John Doe Officers 1-10 and Jane
Doe Officers entered the area. See Id. One of the
Doe Officer's had a video camera and was videotaping
Gilliam. See Id. Lieutenant Hernandez ordered
Officer Rivera and Officer Doe to escort Gilliam to the
disciplinary unit. See Id. Officer Rivera slammed
Gilliam's head on the wall just before leaving the
A&P area. See Id. Gilliam felt light-headed and
experienced severe pain in his head. See id.
Doe and Rivera escorted Gilliam to a small room in the
disciplinary unit that contained a metal bench. See
Id. at 13 ¶ 13. Lieutenant Hernandez announced that
officers would perform a controlled strip search of Gilliam
and directed Gilliam to place his head on the metal bench.
See Id. When Gilliam complied with that order,
Officer Rivera grabbed Gilliam's head and banged
Gilliam's head on the bench. See Id. ¶ 14.
Gilliam cried out for Officer Rivera to stop and felt a
seizure coming on. See id.
“woke up” several minutes later on the floor of
the room with officers and medical staff looking down at him.
See Id. Nurse Anne Marie and another nurse refused
to provide Gilliam with medical treatment of any kind despite
his head injury and complaints of pain. See Id.
¶ 15. Lieutenant Hernandez instructed the nurses not to
treat Gilliam. See id.
Hernandez then ordered Gilliam to get on his knees in front
of the metal bench and place his head on the bench. See
Id. When Gilliam complied with the order, Officers Doe
and Rivera removed Gilliam's pants and underwear. See
Id. at 14 ¶ 16. Officer Rivera inserted his finger
into Gilliam's rectum to find the pill that Gilliam had
allegedly put in a pocket in his pants. See Id.
Gilliam experienced severe pain and yelled for Officer Rivera
to stop the search. See Id. Officer Rivera refused
to immediately end the search. No one found any medication
during the search. See id.
then removed all of Gilliam's clothing, dressed him in a
jumpsuit and escorted him to cell number seven. See
Id. ¶ 17. The officers taunted, ridiculed and used
racial slurs against Gilliam from outside the cell and would
not provide Gilliam with underwear. See id.
one hour after the search, Gilliam informed Officer Doe that
he had been sexually and physically assaulted by correctional
officers and that he needed medical treatment because his
rectum was very painful and that he also sought to file a
complaint. See Id. at 24-15 ¶¶ 17-18.
Officer Doe instructed Gilliam to file a written complaint
but did not provide Gilliam with a request form on which to
write his complaint. See Id. at 15 ¶ 18.
approximately 8:30 a.m. on October 7, 2016, Gilliam informed
Lieutenant Gardino that he had been sexually and physically
assaulted by correctional officers and that he needed medical
treatment. See Id. ¶ 19. Lieutenant Gardino
said okay, but never returned to Gilliam's housing unit.
See Id. Later that day, Gilliam informed Lieutenant
Allen that he had been sexually and physically assaulted by
correctional officers and that he needed medical treatment.
See Id. Lieutenant Allen accused Gilliam of being a
liar, stated that Officer Rivera would never engage in that
type of conduct and left the unit. See id.
October 8, 2016, Counselor Ferreia permitted Gilliam to make
a legal call, but would not permit him to call the PREA
hotline. See Id. ¶ 20. Counselor Ferreia did
give Gilliam some inmate request and grievance forms to fill
out. See Id. Gilliam completed the forms and placed
them in the appropriate boxes. See id.
October 9, 2016, Gilliam informed Lieutenant Miranda that he
had been sexually and physically assaulted by correctional
officers and that he needed medical treatment. See
Id. at 16 ¶ 21. Lieutenant Miranda escorted Gilliam
to the medical department to be examined and treated. See
Id. A physician examined Gilliam, noted that his rectum
was tender and prescribed a medication for pain. See
Id. ¶ 22. Lieutenant Miranda escorted Gilliam from
the medical department to a counselor's office where he
took Gilliam's statement for purposes of filing a formal
PREA complaint regarding the assault that had occurred on
October 6, 2016. See id.
received several disciplinary reports in connection with the
incidents that occurred on October 6, 2016. See Id.
¶ 23. On October 12, 2016, Gilliam attended a hearing to
dispose of the disciplinary reports that he had received.
See Id. Disciplinary Hearing Officer Lopez suggested
that Gilliam plead guilty to the charges in order to avoid
remaining in the disciplinary unit for thirty additional
days. See Id. Gilliam informed Lopez that he did not
want to plead guilty to the charges. See Id. Lopez
indicated that he would continue the hearing until Gilliam
changed his mind about pleading guilty. See id.
about October 14, 2016, Disciplinary Hearing Officer Lopez
re-called Gilliam to a hearing to dispose of the disciplinary
reports. See Id. at 17 ¶ 25. Officer Lopez
indicated that if Gilliam pleaded guilty to the charges, he
would release Gilliam that day to go back to general
population. See Id. Gilliam chose to plead guilty to
the charges in order to be released to general population and
to use the telephone. See Id. ¶¶ 25-26.
Upon his return to his cell in general population, Gilliam
called the Connecticut State Police PREA hotline to lodge a
complaint about the incident in which he was sexually
assaulted. See id.
Connecticut State Trooper acknowledged Gilliam's
complaint and indicated that a Trooper would be at the
facility in half an hour. See Id. ¶ 26. Shortly
after lodging the complaint, Gilliam met with a State Trooper
Costella in a private room. See Id. at 18 ¶ 26.
Gilliam completed a written complaint about the incident and
informed the Trooper that he wanted to press charges. See
Id. ¶ 27. Trooper Costello indicated that he would
review the video footage of the incident and take statements
from the officers involved in the incident. See Id.
As Gilliam walked back to his housing unit, Officers McCarthy
and Officer Doe #3 blocked Gilliam from going up the stairs,
called him names and threatened to harm him in the future.
See Id. Those officers then permitted Gilliam to
climb the stairs and to go to his housing unit. See
arrived at his housing unit, Gilliam placed a call to the
Connecticut State Police to lodge a complaint about his
interactions with Officers McCarthy and Doe #3. See
Id. ¶ 28. Gilliam met with a different State
Trooper. See Id. at 19 ¶ 28. The Trooper
indicated that he could not get involved in internal
complaints against correctional staff. See Id. He
suggested that Gilliam contact administrative officials
within the Department of Correction about the harassment by
Officers McCarthy and Doe #3. See Id. Gilliam was
unable to sleep because he was fearful for his safety. He
submitted several grievances. See id.
days later, Officer Rivera returned to Gilliam's housing
unit and harassed him. See Id. ¶ 29. Gilliam
lodged another complaint. See Id. Lieutenant Miranda
met with Gilliam the following day and took his statement
regarding the harassment by Officers McCarthy, Doe #3 and
Rivera. See id.
October 25, 2016, Gilliam attempted to contact his attorney
because he was afraid for his safety, but his attorney was
unavailable. See Id. On October 26, 2016, prison
officials transferred Gilliam to New Haven Correctional
Center. See Id. at 20 ¶ 30.
November 5, 2016, Trooper Costella arrived at New Haven
Correctional Center (“New Haven Correctional”) to
visit with Gilliam. See Id. ¶ 31. Trooper
Costella read Gilliam his Miranda rights and
suggested that Gilliam change his story about the alleged
sexual assault by officers at Bridgeport Correctional.
See Id. ¶ 32. Trooper Costella indicated that
the videotape of the incident did not show any sexual abuse
by the officers. See Id. He suggested that he could
arrest Gilliam if he did not change his story to reflect that
the assault did not occur. See Id. Gilliam refused
to change his story and announced that he would be filing a
complaint against Trooper Costella with the State Police
Department. See Id. Gilliam did not hear from and
was unable to reach Trooper Costella at any time after
November 5, 2016. See Id. He subsequently spoke with
someone at Troop G and the individual informed Gilliam that
no report had been filed by Trooper Costella. See
suffered extreme emotional distress, anxiety and depression
as a result of the incidents that occurred at Bridgeport
Correctional. See Id. at 21 ¶ 33. Gilliam
claims that he suffered neurological damage from the banging
of his head on the metal bench. See Id. ¶ 35.
contends that the defendants violated his rights under the
Fourth, Sixth, Eighth and Fourteenth Amendments and the PREA.
The complaint may also be construed to assert a First
Amendment retaliation claim. Gilliam mentions state law
claims but does not identify any such claims. For relief, he
seeks monetary damages.
alleges that three days after the assault on October 6, 2016,
a lieutenant took his statement for purposes of filing a
formal PREA complaint regarding the incident and that on
October 14, 2016, he called the PREA hotline to lodge a
complaint against the officers who had sexually assaulted
him. Gilliam contends that the defendants either failed to
follow the PREA or violated his rights under the PREA.
PREA is intended to compile data and statistics concerning
incidences of prison rape and to develop and implement
national standards for the detection, prevention, reduction,
and punishment of prison rape. See PREA, 42 U.S.C.
§§ 30302-03, 30306-07 (formerly cited as
§§ 15602-03, 15606-07)). The Act includes no
language that grants specific rights to inmates. See
Gonzaga University v. Doe, 563 U.S. 273, 279-80 (2002)
(in the absence of “an ‘unambiguous' intent
to confer individual rights, ” such as a right to sue,
courts will not imply such a right in a federal funding
provision). Consequently, district courts have routinely held
that there is no private right of action for inmates to sue
prison officials for non-compliance with the PREA. See
Brown v. Rose, No. 3:16-CV-00229 (JCH), 2018 WL 3637474,
at *7 (D. Conn. July 31, 2018) (“Because the PREA does
not create a private right of action for prisoners, Brown
cannot show that he was actually injured if Captain Cichetti
prevented him from pursuing a PREA claim.”) (collecting
cases); Patterson v. Patterson, No. 1:16-CV-00844
(EAW), 2017 WL 1383899, at *4 (W.D.N.Y. Apr. 14, 2017)
(“[N]othing in the statute suggests that PREA intended
to establish a private cause of action for allegations of
prison rape, and every court to address the issue has
determined that PREA cannot support such a cause of action by
an inmate.”) (internal quotation marks and citations
omitted); Chao v. Ballista, 772 F.Supp.2d 337, 341
n.2 (D. Mass. 2011) (collecting cases and noting that
“every court to address the issue” has held that
the PREA does not allow a private cause of action);
Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL
3851294, at *3 (D. Vt. Aug. 12, 2008) (“[T]he PREA
confers no private right of action. The PREA is intended to
address the problem of rape in prison, authorizes grant
money, and creates a commission to study the issue.”)
allegations that Lieutenant Hernandez, Correctional Officers
Rivera, Neave, McCarthy, Smudin, Finnucan, Gargano and John
Does 1-10 and Jane Does violated his rights under the PREA or
that the supervisory defendants failed to comply with the
PREA do not state a claim of a violation of Gilliam's
constitutionally or federally protected rights. Accordingly,
any claim asserted under the PREA is dismissed. See
28 U.S.C. § 1915A(b)(1).
Department of Correction, UCONN, State ...