Lawrence E. Townsend v. Sharon Byers (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The plaintiff is currently an inmate at Garner Correctional Institution, in Newtown, Connecticut and has been in the custody of the Commissioner of the Department of Correction since June 17, 1987, having been charged with violating General Statutes § 53a-54a, murder, and was sentenced to serve 60 years.   The matter presently before the court arises out of an incident occurring at the MacDougall-Walker Correctional Institution (MacDougall) on July 6, 2006, where the plaintiff was housed from June 3, 2004 to August 5, 2008.   The plaintiff alleges that, on that date, the defendant, a correction officer at MacDougall, told him “to write to Allah” in the presence of 30-40 other inmates in response to the plaintiff indicating that he was going to write to the defendant's supervisor about his concerns over the treatment of inmates at MacDougall.

Following this alleged incident, the plaintiff filed a grievance against the defendant on August 7, 2006 in which he alleges that the defendant violated Administrative Directive 2.17 ¹ by making a defamatory statement regarding his religious beliefs and, furthermore, that the plaintiff believed he would suffer physical harm as the statement was made during an “atmosphere concerning Islam.”   The plaintiff moreover alleges that the statements made by the defendant rise to the level of intimidation or bias, based on his religion, in violation of General Statutes §§ 53a-181j ² and 181l(a).³

After filing the grievance on August 7, 2006, the plaintiff further claims that specific incidents of conduct on the part of the defendant were in direct retaliation for the filing of the grievance.   Specifically, the plaintiff claims that, in January 2008, (1) he was forced to shower last, after a heated verbal exchange between the parties and (2) that he was removed from the “quiet room” at MacDougall for no reason.   The plaintiff further claims that he was subjected to retaliatory conduct by the defendant in July 2008, where the defendant was “hostile towards [him] in retaliation for [ ] filing a law-suit against the [officer] a few years ago for religious discrimination.” ⁴

Other than an outright denial of the allegations of retaliation or ill will, the defendant does not dispute any of the factual allegations made by the plaintiff but asserts, nonetheless, that the plaintiff has failed to either sufficiently allege or present evidence of claims that would entitle him to relief as a matter of law.

The lawsuit presently before the court was filed by the plaintiff on September 10, 2008 and alleges claims for (1) retaliation in violation of the plaintiff's right to freedom of speech under the first amendment of the United States Constitution, (2) violation of the first amendment right to free exercise of religion under the first amendment of the United States Constitution, (3) violation of article first, § 10 of the Connecticut Constitution, (4) verbal harassment in violation of the eighth amendment of the United States Constitution and (5) failure to protect an inmate from harm in violation of the eighth amendment of the United States Constitution.⁵

Additionally, the plaintiff also requests a declaratory judgment against the defendant along with damages, both compensatory and punitive, in an amount totaling $600,000, as well as injunctive relief in the form of a court order requiring correction officers to comply with all administrative directives relating to treatment of inmates.   Pending before the court is the defendant's motion for summary judgment filed on April 13, 2010.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).  “A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).

I

RETALIATION

The plaintiff first claims that his first amendment rights to free speech have been violated due to the retaliatory conduct undertaken by the defendant.⁶  Plaintiffs are held to a particularly stringent standard when alleging an action for retaliation under 42 U.S.C. § 1983.  “This is true for several reasons.   First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated.   Second, prisoner's claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration.   This is so because “virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act.”  Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001)).

In addition, in 2009, the Second Circuit addressed an inmate's claim for retaliation under § 1983 against a prison guard, noting that:  “To prove a First Amendment retaliation claim under Section 1983, a prisoner must show that (1) ․ 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.”   (Internal quotation marks omitted.)  Espinal v. Goord, 554 F.3d 216, 227 (2d Cir.2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004).

A

Protected Activity

The first prong of an action for retaliation requires the plaintiff to have engaged in some sort of activity protected under the first amendment.   A grievance filed by an inmate against a prison official is protected conduct under the first amendment.  Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (holding that prison officials may not retaliate against prisoners for petitioning for redress of grievances).   In the present case, a grievance was filed by the plaintiff in August 2006, in which he asserted that the defendant violated Administrative Directive 2.17.   Considering the allegations made by the plaintiff indicated he was subjected to retaliatory conduct, and in light of the court's holding in Colon, the first element of a retaliation claim is satisfied in the present case.

B

Adverse Action

The second element of the action for retaliation requires some action, undertaken by the defendant that adversely affects the rights of the plaintiff.   The only adverse effects alleged by the plaintiff include (1) the fact that he was forced to shower last by the defendant and (2) that he was removed from the “quiet room” at MacDougall for no apparent reason.   The defendant does not dispute these allegations.   The plaintiff does not state in any of his pleadings that these actions, or any other actions not specified, have infringed on his first amendment right to free speech.   Rather, at most, he alleges only what amounts to a slight inconvenience imposed by the actions of the defendant.

A defendant's action is considered adverse for the purposes of bringing an action for retaliation if it “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.”  Davis v. Goord, supra, 320 F.3d 352.   Moreover, in Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), our Supreme Court notedthat “[t]here is, of course, a de minimis level of imposition with which the Constitution is not concerned.”   In the present case, the plaintiff has failed to demonstrate that any actions undertaken by the defendant would “deter a person of ordinary firmness” from exercising some right beyond a de minimis level.   Considering the allegations made by the plaintiff, in light of the court's holding in Davis and Ingraham, the second element of the plaintiff's retaliation claim has not been satisfied in the present case.

C

Causal Connection

Having failed in the second required element of an action for retaliation, the court need not necessarily address the third element which requires a showing of some causal connection between the protected activity of the plaintiff and the alleged retaliatory conduct of the defendant.   A plaintiff can establish a causal connection that suggests retaliation by showing that the protected activity occurred close in time to the adverse action.   See Clark County School District v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).   The Second Circuit has nevertheless failed to draw “a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action.”  Gorman -Bakos v. Cornell Coop of Schenectady County, 252 F.3d 545, 554, (2d Cir.2001) (suggesting that a lapse of five months between the protected activity and the alleged retaliation may show a causal connection).

In the present case, the plaintiff has not offered any evidence that indicates that the allegedly retaliatory actions made by the defendant in 2008 were in any way related to the grievance filed by the plaintiff in 2006.   Additionally, there have been no allegations or even a chronology of events proffered by the plaintiff that would allow the court to make an inference that the conduct of the defendant, occurring in 2008, was in any way causally related to the plaintiff's filing of a grievance nearly a year and a half previously.   See Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001) (indicating that a description of the “time frame” of events between the protected activity and the alleged retaliation was necessary in order to aid the court in making the proper determination of whether a constitutional violation occurred).   The plaintiff's failure to offer any evidence of this connection means the third element of his retaliation claim has not been met in the present case.

Because the plaintiff has failed to show the existence of material facts in dispute and his complaint otherwise fails to support his claim for retaliation as a matter of law, the defendant is entitled to summary judgment in connection with the plaintiff's claim for retaliation in violation to his first amendment right to freedom of speech.

II

FIRST AMENDMENT RIGHT TO FREE EXERCISE OF RELIGION

The plaintiff next claims that his right to free exercise of religion under the first amendment has been violated by the defendant.   Specifically, he claims his right was violated on July 6, 2006, when the defendant suggested he “write to Allah” in the presence of 30-40 other inmates in response to the plaintiff's indication that he was going to file a grievance against the defendant.   The defendant does not dispute these allegations.

In order to sustain an action for violation of a prisoner's first amendment right to free exercise of religion, the plaintiff must demonstrate that he “requested the right to practice [his] religion and was denied that right;  that is that he ․ requested certain foods, diets, access to books, or religious services and was denied the same.”  Messina v. Mazzeo, 854 F.Sup. 116, 137 (E.D.N.Y.1994).   In the present case, the plaintiff's only claim is the assertion that his religion was ridiculed and defamed, and not otherwise inhibited by the defendant in any way.   Such conduct is clearly outside of the scope of the activities indicated by the Messina court to be protected under the first amendment and, therefore, is not actionable on the part of the plaintiff.   Therefore, the defendant is entitled to summary judgment as to the plaintiff's claim of violation of his first amendment right to the free exercise of his religion.

III

ARTICLE FIRST, SECTION TEN OF THE CONNECTICUT CONSTITUTION

The plaintiff also seeks to assert a claim for the defendant's violation of article first, § 10 of the Connecticut Constitution which provides:  “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”   Conn. Const., art.   I, § 10.   Moreover, “[i]t is now established beyond doubt that prisoners have a constitutional right of access to courts ․ and that such access must be adequate, effective and meaningful.”  (Internal quotation marks omitted.)  Washington v. Meachum, 238 Conn. 692, 735, 680 A.2d 262 (1996) (citing Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)).  “Reasonable access to a law library within the correctional facilities ․ consultation with attorneys or their representatives through the mails and personal visits ․ and consultation with attorneys over the telephone within department guidelines ․ are all valid methods of ensuring that inmates are not denied access to the courts to which they are entitled by the fourteenth amendment and article first, § 10 [of the Connecticut Constitution].”  (Citations omitted.)  Id., 737.

In the present case, there are no facts that support the plaintiff's claim that he has been denied access to the courts as provided under article first § 10 of the Connecticut Constitution.   Nowhere is it alleged by the plaintiff that he did not have access to an attorney or to the law library while he was incarcerated.   Nor is there any factual indication in the pleadings that the defendant, in particular, undertook any efforts to prevent the plaintiff from access the resources regularly available to inmates at MacDougall.   On the contrary, the fact that the plaintiff has effectively initiated the present lawsuit against the defendant lends credence to the suggestion that the plaintiff has free access to the courts.   Because the plaintiff has failed to show the existence of material facts in dispute regarding the claim for a violation of article first, § 10 of the Connecticut Constitution, the defendant is entitled to summary judgment on this claim as well.

IV

VERBAL HARASSMENT

The plaintiff next claims that he was subject to verbal harassment by the defendant in her capacity as a correction officer, and that such harassment was in violation of the prohibition on cruel and unusual punishment incorporated in the eighth amendment to the United States Constitution.   Specifically, the plaintiff claims that, in 2006, he was told to get his “ass out of the dining hall” by the defendant and, in 2008, was called a “bitch” by the defendant when the plaintiff requested to use the shower facilities.   The defendant does not dispute these allegations.

Notwithstanding the offensive and crass remarks made by the defendant, “mere threatening language and gestures of a custodial office do not, even if true, amount to a constitutional violation [sufficient to give rise to an action under 42 U.S.C. § 1983].”  McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983);  see also Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986) (action brought where a prison guard called the defendant names also did not allege any appreciable injury and was properly dismissed).  “Moreover, 42 U.S.C. § 1983 does not provide a remedy for every common law tort and a suit based on that statute cannot be sustained merely on the basis of verbal abuse.  Williams v. Pecchio, 543 F.Sup. 878, 879 (W.D.N.Y.1982) (citing Johnson v. Glick, 481 F.2d 1028 (2nd Cir.1973), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).   The allegations of the plaintiff fall squarely within that rule and even granting the plaintiff the generosity required in civil rights actions brought by self-represented parties, they do not amount to a claim of constitutional magnitude.   For the foregoing reason, the defendant is also entitled to summary judgment as to the plaintiff claimed violation of the eighth amendment of the United States Constitution.

V

FAILURE TO PROTECT

The plaintiff's final claim alleges that the defendant violated his eighth amendment rights by creating a condition in the prison that was likely to cause harm to the plaintiff.   Specifically, the plaintiff alleges that, because the defendant made a statement “you can write to Allah” during an “atmosphere concerning Islam” that such a statement “was designed to cause plaintiff harm as there is reasonable cause to believe that this would cause physical contact with such other persons.”

In order to establish an eighth amendment claim based on prison conditions, a two-part test must be satisfied.  “First, the deprivation alleged must be, objectively, sufficiently serious, a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities ․ For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm ․ The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment ․ To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind ․ In prison-conditions cases that state of mind is one of deliberate indifference to inmate health or safety ․” (Citations omitted;  internal quotation marks omitted.)   Farmer v. Brennan, 511 U.S. 825, 834, 128 L.Ed. 811, 114 S.Ct. 1970 (1994).

In the present case, the plaintiff's complaint is entirely lacking in factual allegations that would even allow the court to make an inference that he was faced with some sort of serious threat by other inmates present at the time the statement was made or that the defendant acted with deliberate indifference to the plaintiff's safety.   Moreover, the plaintiff does not contend that he actually suffered any physical violence, nor that he was even threatened with such violence.   For this reason, the plaintiff has failed to show the existence of material facts in dispute regarding his claimed violation of the eighth amendment of the United States based on allegations that the defendant failed to protect him and summary judgment must be granted on this claim as well.

CONCLUSION

Accordingly, the defendant's motion for summary judgment is hereby granted in its entirety.

Peck, J.

FOOTNOTES

FN1. Administrative Directive 2.17 provides, in relevant part:  “Each employee of the Department of Correction shall engage in appropriate and ethical conduct while carrying out official duties and while engaged in off duty activities which directly reflect on the Department.”.  FN1. Administrative Directive 2.17 provides, in relevant part:  “Each employee of the Department of Correction shall engage in appropriate and ethical conduct while carrying out official duties and while engaged in off duty activities which directly reflect on the Department.”

FN2. General Statutes § 53a-181j provides, in relevant part:  “Intimidation based on bigotry or bias in the first degree:  Class C felony. (a) A person is guilty of intimidation based on bigotry or bias in the first degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.”.  FN2. General Statutes § 53a-181j provides, in relevant part:  “Intimidation based on bigotry or bias in the first degree:  Class C felony. (a) A person is guilty of intimidation based on bigotry or bias in the first degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.”

FN3. General Statutes § 53a-181l(a) provides, in relevant part:  “Intimidation based on bigotry or bias in the third degree:  Class A misdemeanor.   A person is guilty of intimidation based on bigotry or bias in the third degree when such person, with specific intent to intimidate or harass another person or group of persons because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person or persons:  (1) Damages, destroys or defaces any real or personal property, or (2) threatens, by word or act, to do an act described in subdivision (1) of this subsection or advocates or urges another person to do an act described in subdivision (1) of this subsection, if there is reasonable cause to believe that an act described in said subdivision will occur.”.  FN3. General Statutes § 53a-181l(a) provides, in relevant part:  “Intimidation based on bigotry or bias in the third degree:  Class A misdemeanor.   A person is guilty of intimidation based on bigotry or bias in the third degree when such person, with specific intent to intimidate or harass another person or group of persons because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person or persons:  (1) Damages, destroys or defaces any real or personal property, or (2) threatens, by word or act, to do an act described in subdivision (1) of this subsection or advocates or urges another person to do an act described in subdivision (1) of this subsection, if there is reasonable cause to believe that an act described in said subdivision will occur.”

FN4. The court takes judicial notice that, according to the pleadings offered by the defendant, and uncontested by the plaintiff, no previous lawsuits have been filed by the plaintiff, against this defendant, other than the present case before the court..  FN4. The court takes judicial notice that, according to the pleadings offered by the defendant, and uncontested by the plaintiff, no previous lawsuits have been filed by the plaintiff, against this defendant, other than the present case before the court.

FN5. The plaintiff also brings a general constitutional claim based on the allegations that the statements made by the defendant rise to the level of intimidation or bias, based on his religion, in violation of General Statutes §§ 53a-181j and 181l(a).   He does not, however, cite to any authority, nor is the court aware of any authority indicating that provisions of the Penal Code gives rise to constitutional protections.   In addition, while no mention is made by the plaintiff in the text of the complaint, the court interprets the present action as one brought pursuant to 42 U.S.C. § 1983 which provides, in relevant part:  “Every person who under cover of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”.  FN5. The plaintiff also brings a general constitutional claim based on the allegations that the statements made by the defendant rise to the level of intimidation or bias, based on his religion, in violation of General Statutes §§ 53a-181j and 181l(a).   He does not, however, cite to any authority, nor is the court aware of any authority indicating that provisions of the Penal Code gives rise to constitutional protections.   In addition, while no mention is made by the plaintiff in the text of the complaint, the court interprets the present action as one brought pursuant to 42 U.S.C. § 1983 which provides, in relevant part:  “Every person who under cover of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

FN6. The plaintiff indicates in his complaint that there were two instances of retaliatory conduct inflicted upon him by the defendant.   The first, allegedly occurring in January 2008, is analyzed in this memorandum.   The second, allegedly occurring in July 2008, has been omitted from analysis due to the plaintiff's pleadings being wholly conclusory in nature and, thus, without merit.  “A complaint of retaliation that is wholly conclusory can be dismissed on the pleadings alone.”  Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996)..  FN6. The plaintiff indicates in his complaint that there were two instances of retaliatory conduct inflicted upon him by the defendant.   The first, allegedly occurring in January 2008, is analyzed in this memorandum.   The second, allegedly occurring in July 2008, has been omitted from analysis due to the plaintiff's pleadings being wholly conclusory in nature and, thus, without merit.  “A complaint of retaliation that is wholly conclusory can be dismissed on the pleadings alone.”  Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).

Peck, A. Susan, J.