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Whitaker v. McDougall CC

United States District Court, D. Connecticut

November 13, 2019

PRECELL WHITAKER, Plaintiff,
v.
McDOUGALL CC, et al., Defendants.

          ORDER

          VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE

         Pursuant to the Court's October 15, 2019 Order, plaintiff, Precell Whitaker, currently confined at Corrigan-Radgowski Correctional Center in Uncasville, Connecticut, has filed a second amended complaint pro se under 42 U.S.C. § 1983. Plaintiff names eight defendants in the second amended complaint: MacDougall CC, John Doe Population Management, Captain Taylor, Counselor Supervisor Carbone, Correctional Counselor Crespo, Lieutenant Cuzio, Social Worker Lisa Simo-Kenzer, and Dr. Martin Cartwright. Plaintiff seeks damages from the defendants for violation of his rights under the Eighth Amendment.

         Under 28 U.S.C. § 1915A (2000), the 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. Id. This requirement applies both when plaintiff pays the filing fee and when she proceeds in forma pauperis. See Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam).

         In reviewing a pro se complaint, the court must assume the truth of the allegations, and interpret them liberally to “raise the strongest arguments [they] suggest[].” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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.” Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “pro 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).

         I. Allegations

         While he was confined at MacDougall CC, plaintiff was removed from the non-transfer list without notification. Doc. #20 ¶ 1. Plaintiff received third party results indicating a false positive opiod screening, received an extensive stay in segregation, and submitted an inmate grievance, lost work, was subjected to extended jail time, and received many disciplinary reports since June 2018. Id.

         After he was transferred, plaintiff was pepper-sprayed. Id. ¶ 2. Correctional policy requires that a warning be given before a chemical agent is deployed. Id. No warning was given to plaintiff at Cheshire Correctional Institution on August 8, 2018 at 7:50 p.m. in the East Block 2 dayroom or in April 28, 2019 at 9:20 a.m. in the North Block 2 dayroom. Id. On the second date, plaintiff had complied with staff orders to retreat from the ongoing situation and had his hands raised in a submitting posture. Id.

         Since his transfer, the Department of Correction has disrupted plaintiff's contact with “anyone of legal stand.” Id. ¶ 3. Plaintiff was not afforded legal calls with Inmate Legal Aid on April 3, 2019, and March 20, 2019. Id. When the April 3, 2019 call was not rescheduled, plaintiff sent a letter on April 8, 2019. Id. He did not receive the response dated April 12, 2019. Id. After several ignored requests for a legal call, plaintiff was able to speak with Inmate Legal Aid on April 25, 2019. Id. On May 1, 2019, plaintiff received correspondence dated April 17, 2019. Id. Captain Taylor delivers legal mail, and Counselor Crespo arranges legal calls. Id.

         II. Discussion

         In the Order dismissing the amended complaint, the Court noted that plaintiff failed to allege facts to support claims for retaliation, use of excessive force, deliberate indifference to medical needs, or denial of access to the courts. The Court afforded plaintiff an opportunity to file a second amended complaint to allege facts to correct the various deficiencies identified with regard to each of his claims. Liberally construing the allegations, the Court considers the second amended complaint to assert claims for improper or retaliatory transfer, use of excessive force, and denial of access to the courts.

         The Court ordered that the Clerk send plaintiff an amended complaint form with the prior Order. Doc. #18 at 7. In that form, plaintiff was specifically instructed to state who acted, what they did, when they did it, and how he was harmed. See Pro Se Prisoner Civil Rights Amended Complaint Form at 4, available at ctd.uscourts.gov. Plaintiff has not followed that instruction.

         A. Retaliation

         In the amended complaint, plaintiff alleged that defendant Doe transferred him because he filed a grievance regarding a false positive drug test. He now alleges various happenings before his transfer, including, filing a grievance, the false positive test, time in segregation, multiple disciplinary reports, and loss of work.

         As the court previously explained, to state a retaliation claim, plaintiff must allege facts showing “(1) that the speech or conduct at issue was protected. (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Burns ...


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