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Gilliam v. Black

United States District Court, D. Connecticut

August 7, 2019

DERRICK GILLIAM, Plaintiff,
v.
WARDEN BLACK, et al., Defendants.

          INITIAL REVIEW ORDER

          Stefan R. Underhill, United States District Judge.

         The 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.

         I. Standard of Review

         Under 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).

         II. Facts

         On 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.

         When 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.

         Correctional 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. See id.

         A short 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.

         A nurse 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 id.

         On 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 id.

         Officer 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.

         After 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.

         Officers 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.

         Gilliam “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.

         Lieutenant 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.

         Officers 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.

         Approximately 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.

         At 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.

         On 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.

         On 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.

         Gilliam 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.

         On or 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.

         The 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 id.

         When he 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.

         Several 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.

         On 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.

         On 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 id.

         Gilliam 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.

         III. Discussion

         Gilliam 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.

         A. PREA

         Gilliam 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.

         The 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.”) (citation omitted).

         The 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).

         B. Department of Correction, UCONN, State ...


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