United States District Court, D. Connecticut
INITIAL REVIEW ORDER
R. UNDERHILL UNITED STATES DISTRICT JUDGE
Schlosser (“Schlosser”), is confined at New Haven
Correctional Center. He has filed a civil rights action under
42 U.S.C. § 1983 and Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et seq., against Commissary Officer Manuel and
Correctional Counselor McNeill. He alleges that the
defendants deprived him of the privilege of purchasing items
from the commissary from April 4, 2019 to June 29, 2019. For
the reasons set forth below, the complaint is dismissed.
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).
Manuel was in charge of the commissary at New Haven
Correctional Center in May and June 2019. Compl. at 2, 4
¶¶ 1, 4. Schlosser spoke to Commissary Officer
Manuel on multiple occasions in May 2019 because he had not
been allowed to order items from the commissary. Id.
at 4 ¶ 2. Officer Manuel informed Schlosser that there
was a red line through his name and that he might be on loss
of commissary privileges status. Id. Officer Manuel
suggested that Schlosser check with the disciplinary
administrator to find out if he had in fact lost commissary
privileges. Id. At some point after May 21, 2019,
Schlosser learned that he was not on loss of commissary
privileges status. Id. ¶ 2; Exs., ECF No. 1-1,
at 4. On June 4, 2019, prison officials at New Haven
Correctional transferred Schlosser to Hartford Correctional
Center (“HCC”). Compl. at 4 ¶ 4.
attempted to order items from the commissary at HCC but only
received items from the Loss of Commissary menu. Id.
¶ 5. In response to Schlosser's written request, the
commissary officer at HCC informed him that he had been on
loss of commissary but “she fixed it for [him].”
filed two grievances because he had been “lied to and
deceived.” Id. ¶ 6. On August 6, 2019,
Correctional Counselor McNeill returned the first grievance
without disposition because prison officials had refunded
Schlosser the money that had been deducted from his inmate
account for the purchase of items that Schlosser did not
receive. Id. ¶ 7; Exs., ECF No. 1-1, at 2. On
August 14, 2019, Correctional Counselor McNeill returned the
second grievance without disposition because the issue in the
grievance had been addressed in response to the first
grievance. Exs., ECF No. 1-1, at 1.
claims that state officials have lied to and unnecessarily
punished him and have excluded him in violation of the
Americans with Disabilities Act. He seeks monetary damages
and declaratory and injunctive relief.
preliminary matter, it is not clear whether Schlosser was a
sentenced inmate or a pretrial detainee at the time of the
alleged violations of his rights. The State of Connecticut
Judicial Branch records reflect that a judge sentenced
Schlosser in two state court cases on September 27, 2012 to
ten years of imprisonment, execution suspended after thirty
months and followed by ten years of probation. See State
v. Schlosser, H12M-CR11-0236734-S (Conn. Super. Ct.
Sept. 27, 2012); State v. Schlosser,
H12M-CR12-0237931-S (Conn. Super. Ct. Sept. 27,
2012). Manchester police officers subsequently
arrested Schlosser on violation of probation charges. See
Id. On April 17, 2017, a judge found Schlosser guilty of
violating a condition or conditions of his term of probation
in both criminal cases and re-sentenced Schlosser in both
cases to ninety months of imprisonment, execution suspended
after one year and followed by ten years of probation.
October 30, 2018, probation officers arrested Schlosser for
violating a condition or conditions of his term of probation
in State v. Schlosser, H12M-CR12-0237931-S, and on
November 1, 2018, probation officers probation arrested
Schlosser for violating a condition or conditions of his term
of probation in State v. Schlosser,
H12M-CR11-0236734-S. Both violation of probation charges remain
pending against Schlosser. See Id. Thus, during the
time period from April to June 2019 when Schlosser could not
purchase items from the commissary, he was awaiting
disposition of the probation charges pursuant to which he was
arrested in October and November 2018.
42 U.S.C. § 1997e(h), a “prisoner” is
defined as “any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the
terms and conditions of parole, probation, pretrial release,
or diversionary program.” 42 U.S.C. § 1997e(h).
The Second Circuit, however, has not resolved whether a
probationer awaiting disposition of a violation of probation
charge is considered to be a prisoner or a pretrial detainee.
See Hill v. County of Montgomery, 2018 WL 2417839,
at *2 (N.D.N.Y. May 29, 2018) (“Whether to classify an
individual detained for a suspected probation violation as a
pretrial detainee or a convicted prisoner is an
‘unresolved and difficult question.'”)
(quoting Harry v. Suarez, 2012 WL 2053533, at *2 n.3
(S.D.N.Y. June 4, 2012)). In Hill, the district
court concluded that the status of an individual confined for
a probation or parole violation was “more akin to that
of a pretrial detainee, ” at least until after the
hearing and determination of guilt of the violation.
Id. at *2. Schlosser had not been found guilty of
violating the conditions of his term of probation as of the
time period during which he could not purchase items from the
commissaries at New Haven and Hartford Correctional Centers.
Thus, for purposes of the analysis of Schlosser's
conditions of confinement claim, I conclude that Schlosser
was a pretrial detainee at the time of the alleged
constitutional violation and analyze his claim under the
Fourteenth Amendment. See Darnell v. Pineiro, 849
F.3d 17, 29 (2017) ("A pretrial detainee's claims of
unconstitutional conditions of confinement are governed by
the Due Process Clause of the Fourteenth Amendment.").