Opinion
CV105033461
08-26-2016
Kacey Lewis v. John Alves et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Steven D. Ecker, Judge.
Plaintiff is a sentenced inmate currently housed at Cheshire Correctional Institution (" Cheshire"). His lawsuit seeks injunctive relief and punitive damages against six current or former employees of the Connecticut Department of Corrections (DOC) based on allegations that defendants violated one or more of plaintiff's constitutional rights in a variety of incidents taking place at Cheshire in 2010. Defendants have moved for summary judgment on all counts. The issues have been briefed extensively by plaintiff and defendants, and the parties have submitted affidavits and other materials in support of their respective positions. All of the submissions relating to the pending motion have been carefully reviewed by this court. For the reasons that follow, the motion for summary judgment is granted.
The summary judgment standard is well-known. See Practice Book Section 17-49; see, e.g., Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016); Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008); Daly v. New Britain Machine Co., 200 Conn. 562, 568-69, 512 A.2d 893 (1986). The court will address below each count of the complaint and explain why the claim fails under the applicable legal framework. Although the court has spent many, many hours reading, digesting and analyzing the voluminous materials submitted by the parties and researching all of plaintiff's legal claims, there is no need to repeat in the course of this decision. The court's failure to provide complete record citations or mention each item of purported evidentiary support in the following discussion should not be taken to mean that the court failed to consider the full record in the disposition of the case. To the contrary, the court has taken pains to consider every material factual and legal claim in arriving at its decision.
One preliminary comment is in order regarding the relief sought. Plaintiff's lawsuit principally seeks structural or institutional injunctive relief. He asks this court to formulate and impose specific, detailed operational directives for implementation by the prison authorities at Cheshire with respect to policies for inmates to copy legal documents, access notary public services, receive confidential attorney-client correspondence (" legal mail"), hold attorney-client telephone calls, receive fair consideration of claims of staff retaliation in connection with inmate grievances, access legal materials and related resources, and prevent or remedy mistreatment in punitive segregation and/or restrictive housing, among other things. See Complaint at pp. 13-15. He also seeks injunctive relief terminating defendants Alves, Lopes and Fortin from their positions within the DOC. Id. at pp. 15-16.
He also seeks punitive (but not compensatory) damages.
In considering these remedial requests, the court must be mindful of the extensive body of case law, federal and state, admonishing courts to exercise restraint before becoming involved in the day-to-day operations of correctional facilities. In part, this cautionary counsel is motivated by concerns over the separation of powers. " Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of the government. Prison administration . . . is a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint." Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); see, e.g., State v. Fernandez, 254 Conn. 637, 656, 758 A.2d 842 (2000) (" It is not with the province of the judiciary to micromanage prisons"). Judicial restraint is also appropriate because the demands and difficulties of maintaining safety and order within correctional facilities is an extremely complicated, even " Herculean" task, and courts are generally ill-equipped to deal with the manifold complexities involved. Joyce v. Commissioner, 129 Conn.App. 37, 40 n.2, 19 A.3d 204 (2011); see also Townsend v. Sterling, 157 Conn.App. 708, 720, 116 A.3d 873 (2015) (affirming summary judgment with respect to broad injunctive relief, even where plaintiff stated a claim for violation of free speech rights).
This cautionary note does not mean that the conduct of prison officials and the content of prison policies are exempt from judicial review or that constitutional violations are immune from legal remedy. Of course not. It does mean, however, that a reviewing court in this context must be careful to ensure that an inmate's claims for injunctive relief have merit under applicable law sufficient to warrant injunctive relief--or in the case of a motion for summary judgment, as here, that the factual record as presented could support a finding of a constitutional violation in the inmate's favor warranting injunctive relief after a full trial. The existence of a constitutional violation is a necessary (though not sufficient) condition for issuance of injunctive relief in the present case, and so the first step in the court's analysis here must be to determine whether plaintiff's constitutional claims survive summary judgment. The following analysis explains why the court has decided they do not.
Even outside of the prison context, a party seeking injunctive relief must demonstrate that (1) he has no adequate remedy at law, (2) he will suffer irreparable harm without an injunction, and (3) the granting of an injunction is compatible with the equities of the case, which should take into account the gravity and the willfulness of the violation as well as the potential harm to the defendant. See, e.g., Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996); Steroco, Inc. v. Szymanski, 166 Conn.App. 75, 87-88, 140 A.3d 1014 (2016).
First Count--Access to Legal Services and Interference with Legal Mail
The First Count of plaintiff's complaint alleges a violation of his right of access to the courts under the First and Fourteenth Amendments. Plaintiff claims, first, that defendants Fortin, Alves, Lopes, and other DOC employees at Cheshire ignored or denied his repeated requests for access to photocopying and notarization services in connection with his efforts to prepare and file time-sensitive legal documents between April 20, 2010 and May 10, 2010. Complaint, First Count, ¶ ¶ 1-9. Plaintiff has submitted affidavits and various internal DOC documents in support. See Lewis Affidavit Re Fortin at ¶ ¶ 3-11; Lewis Affidavit Re Alves at ¶ ¶ 1-4, 9-11; Inmate Request Form dated 4/30/10; Administrative Remedy Routing/Check Sheet dated 6/8/10; Administrative Remedy Routing/Check Sheet dated 7/9/10; email from Sosnowski to Hicks dated 7/16/10. (In addition, the record contains numerous emails circulated on June 10, 2010 between various DOC employees seeking information regarding the facility's obligation to provide notary services to inmates. See also Email from Ryba to Alves dated 6/16/10.)
Plaintiff also claims that on two occasions (April 27 and May 7, 2010), legal mail was opened outside of his presence. Complaint, First Count, ¶ ¶ 10-12. See Lewis Affidavit Re Fortin at ¶ ¶ 3-11; Lewis Affidavit Re Alves at ¶ ¶ 7-8; see also Administrative Remedy Routing/Check Sheet dated 6/8/10; Email from Hicks to Lopes dated 6/9/10; Email from Hicks to Lopes dated 6/10/10; Email from Hicks to Lopes dated 6/11/10; Email from Lopes to Hicks dated 6/11/10.
Plaintiff's claims relating to access to photocopying and notary services for legal purposes is analyzed under the standard set forth in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Under that case and its progeny, an inmate must plead and prove, among other things, that he suffered an " actual injury" as a result of the defendants' wrongful acts. Id. at 353; see also, Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997), denied 525 U.S. 823, 119 S.Ct. 66, 142 L.Ed.2d 52 (1998); Shabazz v. Dzurenda, 3:16cv62 (MPS), 2016 WL 4203395, at *2 (D.Conn. August 9, 2016); Davila v. Messier, No. 3:13-cv-81 (SRU), 2014 WL 4638854, at *6 (D.Conn. September 17, 2014). Nothing in the record presents a triable issue on this point.
Plaintiff's claim of actual injury is limited to the assertion that his inability to obtain timely access to the services of a notary public at Cheshire resulted in the denial of plaintiff's postjudgment motion for recusal of the trial judge in Lewis's criminal case, State v. Lewis, Docket No. UWY-CR090382586. (Connecticut Practice Book § 1-23 requires such a motion to be accompanied by an affidavit, i.e., a notarized statement setting forth the factual basis of the motion). However, a review of the transcript of the proceedings on plaintiff's recusal motion demonstrates beyond doubt that the trial judge (Damiani, J.) heard Lewis's motion on its merits, and denied it on substantive grounds. Thus, after Judge Damiani noted that Lewis's motion was not notarized, (TR 5/4/10 at 2), he immediately moved to the substance of the motion, and allowed Lewis to present the recusal claim in open court. Id. at 3 (" Go ahead. I'll let you talk. Go ahead. Go ahead, Kacey.") Lewis explained his claim of judicial bias at great length. Id. at 3-10. Judge Damiani very plainly rejected the argument on the merits : " Your claims before me are absurd." Id. at 10. A short time later, Judge Damiani stated that " your motion to recuse me is denied . . . because it--it's absurd." Id. at 11.
It is obvious to this court that the presence or absence of the notarization had nothing to do with the outcome of the legal proceeding at issue. Accordingly, plaintiff cannot show that he sustained any actual injury due to the misconduct alleged in the First Count. In addition, in light of Judge Damiani's ruling, it is safe to say that plaintiff has failed to submit any evidence indicating that defendants' alleged misconduct impaired his ability to obtain access to the courts in connection with a non-frivolous legal claim, which at least one respected federal district court has found to preclude liability in this context. See Shabazz v. Dzurenda, supra, 2016 WL 4203395, at *3 (Shea, J.).
With respect to the claims in the First Count alleging that plaintiff's legal mail was opened on two occasions, plaintiff has failed to make any showing that these two incidents were part of an " ongoing practice of censorship" by defendants, or caused him " to miss any court dates or in any way prejudiced his legal actions." Davis v. Goord, 320 F.3d 346, 351-52 (2d Cir. 2003); see also Shabazz v. Dzurenda, supra, 2016 WL 4203395, at *4. Plaintiff also fails even to allege, much less produce evidence, that the two incidents involving his legal mail caused him any harm or prejudice of any kind. No constitutional violation could be found to exist under these circumstances.
Second Count--Interference with " Legal" Telephone Call and Retaliation
The Second Count has two components. First, plaintiff alleges that two DOC employees engaged in loud conversation in the counselor's office where plaintiff was holding a " legal" telephone call on April 30, 2010, thereby making it " difficult" for plaintiff to conduct his call; when plaintiff complained to them about the noise and asked for quiet, the staff required him to terminate the call. Complaint, Second Count, ¶ 2. Second, plaintiff alleges that the same two employees brought a disciplinary charge against plaintiff for causing a disruption in retaliation for plaintiff's noise complaint. Complaint, Second Count, ¶ ¶ 3-4. Plaintiff alleges that this conduct violated his rights under the First, Sixth and Fourteenth Amendments.
This claim also must fail. To begin with, the court has searched the record in vain for any evidence to support the factual allegations set forth in the Second Count regarding events in the counselor's office during the telephone call at issue. Neither plaintiff's own affidavits nor any other materials submitted by any party attest to the staff interference described in the complaint. The only materials referring to the relevant events (i.e., the alleged boorish conduct and interruption of the phone call by DOC employees) is contained in the affidavit of defendant Stacy Anderson, submitted in support of the motion for summary judgment, in which Anderson describes the report of plaintiff's disruptive conduct on April 30th leading to his disciplinary hearing on May 5, 2010. The court cannot find any evidence supporting plaintiff's allegation that the disciplinary report was in retaliation for plaintiff's exercise of his legal rights, as alleged. In the face of defendant's evidence rebutting the factual allegations that form the basis of the Second Count, plaintiff has failed to produce any evidence that a genuine issue of material fact exists. See, e.g., Marinos v. Poirot, 132 Conn.App. 693, 697-98, 33 A.3d 282 (2011).
Even apart from this evidentiary gap, the claim fails to establish a basis for any finding of liability. To begin with, plaintiff fails to explain how the staff's alleged conduct during his telephone call amounts to any kind of constitutional violation, and he provides no legal authority in support of such a claim. Noisy or boorish conduct by staff during a single telephone call is impolite, but is not misconduct of constitutional dimension. The same is true of the premature termination of a single telephone call, at least in the absence of any claim that the call was urgent or important or even necessary, and without any claim of any resultant injury caused by the call being terminated. Moreover, the staff member who filed the disciplinary report is identified in the summary judgment papers as a counselor named " W. Booker." See Disciplinary Report dated 4/30/10. But Booker is not a defendant. Plaintiff fails to submit any evidence supporting the allegation that Counselor Booker had any reason to retaliate against him, or that plaintiff's protected conduct was a substantial or motivating factor behind Booker's disciplinary report. For this reason as well, the Second Count cannot meet the legal standard applicable to claims of retaliation in this context, see, e.g., Davila v. Messier, supra, 2014 WL 4638854, at *8 (" Because claims of retaliation are easily asserted, the courts consider such claims with skepticism and require that they be supported by specific facts; conclusory statements are not sufficient. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 2003)").
Third Count--Procedures in Connection With the Disciplinary Hearing
The disciplinary hearing involving the April 30th incident was held on May 5, 2010. In the Third Count of his complaint, plaintiff alleges that defendant Stacy Anderson served as an unwanted " advocate" at the hearing, over his objection, and that Anderson acted against his interests by recommending that (1) he be found guilty of the charges and (2) sanctions be imposed. See Complaint, Third Count; Lewis Affidavit Re: Anderson at ¶ ¶ 4-8. Plaintiff also claims that defendant Johnson, the DOC employee assigned to investigate the disciplinary report, refused plaintiff's request to call an unidentified " unit correctional officer from South Block 3" as a witness at the hearing. See Lewis Affidavit Re Johnson at ¶ 4-5. In addition to the Lewis Affidavit Re Johnson, the court has reviewed the other summary judgment materials submitted in connection with this claim, including, without limitation, defendant Anderson's affidavit and the relevant disciplinary report, disciplinary investigation report, advocate investigation report, disciplinary supplemental information, disciplinary process summary report, and the applicable portions of the DOC Administrative Directive, Code of Penal Discipline.
Plaintiff's claims relating to defendant Anderson's role in the disciplinary and investigative process do not state a constitutional violation. See, e.g., Solman v. Manzi, No. 3:10-cv-729 (SRU), 2010 WL 7864926, at *3 (D.Conn. July 21, 2010) (rejecting virtually identical due process claim regarding role of advocate in prison disciplinary process), reconsideration granted in part on other grounds, 2010 WL 3829149 (D.Conn. Sept. 17, 2010); Davila v. Messier, supra, 2014 WL 4638854, at *8 (prisoner has no due process right to have claims investigated to his satisfaction). The requirements of constitutional due process apply in the prison disciplinary context only where an inmate's liberty interest is implicated. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Joyce v. Commissioner of Correction, 129 Conn.App. 37, 42-43, 19 A.3d 204 (2010). Under Sandin, a liberty interest does not arise unless the disciplinary measure imposes " an atypical and significant hardship . . . in relation to the ordinary incidents of prison life." 515 U.S. at 484. Placement in punitive segregation or restrictive housing does not impose such a hardship, and thus does not implicate a liberty interest for these purposes. This point applies to plaintiff's allegations regarding defendant Johnson as well. See Joyce v. Commissioner of Correction, supra, 129 Conn.App. at 43 (refusal to permit inmate to play videotape at disciplinary hearing " is of no constitutional significance" in absence of protected liberty interest).
Fourth Count--The Strip Search on May 5, 2010
As a result of the guilty finding at the May 5th disciplinary hearing, plaintiff was ordered to be placed in the Restrictive Housing Unit (RHU) for a period of time. The Fourth Count alleges that defendant Lopes improperly demanded that plaintiff submit to a full body cavity search at the time he was placed in the RHU on May 5. Plaintiff claims that because he refused to undergo the body cavity search, Lopes retaliated by ordering DOC staff to restrain plaintiff and use physical force to conduct a search. He also alleges that Lopes thereafter directed DOC staff to file a false disciplinary report claiming that plaintiff had refused to submit to a strip search, when in fact he had refused to submit to a body cavity search, not a strip search. Complaint, Fourth Count; Affidavit of Lewis re Lopes, at ¶ ¶ 4, 7-10. Plaintiff states or implies that he was subjected to additional disciplinary and punitive measures as a result of Lopes' wrongful conduct and the associated false disciplinary proceedings. He alleges that the foregoing conduct violated his rights under the Fourth, Eighth and Fourteenth Amendments.
A brief review of the relevant DOC Administrative Directives will be helpful here. The relevant Administrative Directive then in effect defined a strip search as " a visual body cavity search which includes a systematic visual inspection on an unclothed person's hair, body cavities (to include the individual's ears, nose, mouth, underarms, soles of the feet and between the toes, and rectum) and genitalia. This search shall also include a physical search of the clothing and any personal effects." Administrative Directive 6.7, ¶ 3(L) (eff. date 4/15/10). If the inmate cooperates as necessary to display the pertinent body parts for visual inspection, there is no requirement of actual physical contact by DOC staff during a strip search. However, in the event that the inmate refuses to cooperate, DOC policy provides for staff to conduct what is called a " controlled strip search, " which is a " hands on" procedure involving physical restraint of the inmate so that the staff is able " to view all areas of the inmate's body." Id., ¶ 5(D). This Directive instructs that " [a]t all times, staff shall avoid contact with the genitals and rectum." Id. Finally, it is important to underscore that DOC policy required a strip search to be performed on any inmate " upon placement in any specialized housing unity, to include . . . restrictive housing." Id. at 5.A.6(h).
A " manual body cavity search, " the procedure that plaintiff claims was wrongfully demanded by Lopes, is very different. See Administrative Directive 6.7, ¶ ¶ 3(H), 7 (eff. date 4/15/10). This search may only be performed by a medical professional under the supervision of a licensed physician in a clinical setting, and there are eight specific guidelines governing the conditions under which such a search may be performed on an inmate. Id. It seems apparent that it would have been a clear violation of DOC policy if plaintiff had been subjected to a manual body search under the circumstances existing at the time he was placed in the RHU on May 5, 2016. But that did not happen.
The record is crystal clear: no body cavity search was threatened, requested, or conducted on plaintiff, and no reasonable factfinder could credit plaintiff's claims in this regard. The entire search procedure at issue was videotaped, with audio, by DOC staff (hereinafter " the recording"). The recording was submitted by defendants as an exhibit in connection with their motion for summary judgment, and the court has reviewed it numerous times with care and close attention to detail. It begins before Lewis enters the RHU and prior to initiation of any search; it ends after the search is completed and Lewis is left alone in his cell. There are no gaps. At no point during the process did anyone conduct, attempt to conduct, request, demand, threaten or otherwise discuss conducting a body cavity search on Lewis. To the contrary, the DOC employee supervising the process, who is unidentified in the recording but presumably is defendant Lopes, politely requested plaintiff to cooperate with the strip search procedure, and explained that such cooperation would ensure that there would be no physical contact with his body at all. After plaintiff expressed his unwillingness to cooperate, Lopes told Lewis that the procedure would require him only to " bend over" and assured Lewis that, if he cooperated, " nobody is going to touch you." Lewis rejected repeated these efforts to proceed voluntarily. Left with no choice, id., ¶ 5.A.6(h) (requiring strip search upon initial placement of inmate in RHU), Lopes then instructed staff to proceed with a " controlled strip search, " the procedure described in Administrative Directive 6.7, ¶ 5(D).
The entire controlled strip search is shown on the recording, Court Ex. 1. It is clear that no body cavity search was conducted in the process. In particular, the DOC staff at all times complied with the Administrative Directive by avoiding contact with plaintiff's genitals and rectum. Plaintiff is never heard at any time during the strip search commenting or complaining that the DOC staff has touched his genitals or physically invaded any body cavity.
Plaintiff's complaint and summary judgment papers contain allegations of mistreatment in connection with the search and retaliation by Lopes after plaintiff raised objections to defendant Lopes' supposed efforts to coerce submission allowing Lopes or DOC staff to " probe into the plaintiff's anus." Plaintiff's Objection to Motion for Summary Judgment, at 3 (#167.00); see Lewis Affidavit Re Lopes at ¶ 4. The recording refutes those allegations, and plaintiff has no response; nothing has been heard from plaintiff regarding this claim since the recording became available to him for viewing in April 2016.
This last point warrants elaboration. The recording was first made available to the court on April 1, 2016, the day when oral argument was heard in connection with the motion for summary judgment. Arrangements were made, on the record, for a copy of the recording to be delivered to Cheshire, for plaintiff's viewing, no later than April 5, 2016. Plaintiff requested, and was granted, thirty days to explain or elaborate his legal position after viewing the recording, with a response deadline of May 6, 2016. The court waited to review the recording (and to begin any consideration of the motion for summary judgment) until that response was received. But the response never came. Plaintiff was under no obligation to file anything, but, in light of the contents of the recording, the absence of any rebuttal or explanation whatsoever is itself evidence that the recording shows what really occurred that day, and supports the conclusion that plaintiff has no evidence that would defeat summary judgment on this claim.
Because of the personal nature of its contents, the recording was not submitted by the defendants until they obtained permission from the court to file it under seal. See Docket Entry #151.00 (filed August 28, 2015). The motion to seal was not acted upon until April 1, 2016. Once the motion was granted, the CD-ROM disk containing the recording was marked as Court Ex. 1, and arrangements were made immediately for a copy to be delivered promptly to plaintiff. This all occurred on the record during the April 1 hearing, and plaintiff seemed satisfied with the procedure at the time.
Fifth Count--Conditions of Confinement and Other Claims Arising While in Restrictive Housing
The Fifth Count contains two general categories of claims involving alleged mistreatment of plaintiff while in restrictive housing in May, June and July 2010. One set of claims relates to the conditions of plaintiff's confinement, and principally involves allegations that plaintiff was placed in a cell with surfaces covered with mold and rust for a period of approximately 75 days. He complained but obtained no relief. The second set of claims involves access to legal services and resources during the same period, and includes allegations that plaintiff was denied access to his legal documents, denied legal calls, and precluded from filing grievances, among other things. Plaintiff contends that at least some of this treatment was retaliatory in nature, and that defendants violated his constitutional rights under the First, Sixth, Eighth and Fourteenth Amendments.
The allegations relating to conditions of confinement do not withstand summary judgment under applicable legal standards. The conditions described by plaintiff are substantially less harsh than those that have been found to pass constitutional muster in other cases involving Connecticut prisons. See, e.g., McNatt v. Unit Manager Parker, No. 3:99CV1397 (AHN), 2000 WL 3070000, at *3-*6 (D.Conn., January 18, 2000) (granting defendants' motion for summary judgment); Alston v. Butkiewicus, No. 3:09CV207 (CSH), 2012 WL 6093887, at *9-*10 (D.Conn. Dec. 7, 2012) (same).
With respect to access to his legal files, legal calls, and similar claims, these claims must succumb to summary judgment for essentially the reasons that the claims in the First and Second Counts suffer the same fate. See above at pp. 2-4.
Conclusion
Summary judgment is granted in defendants' favor on all counts.
It is so ordered.