JONES v. BARAN (2025)

MEMORANDUM & ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Dashante Scott Jones, a sentenced inmate in the custody of the Connecticut Department of Correction (“DOC”), filed a pro se complaint pursuant to 42 U.S.C. § 1983 against three DOC employees who all work at Cheshire Correctional Institution (“Cheshire CI”): Correction Officer Baran, Correction Officer Bryant, and Lieutenant Caballero.¹

Plaintiff is proceeding for damages on claims of (1) Eighth Amendment excessive force and medical indifference and First Amendment retaliation against Correction Officer Baran, Correction Officer Bryant, and Lieutenant Caballero; (2) the Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) for disability discrimination against Lieutenant Caballero; (3) state law defamation against Lieutenant Caballero and Officer Baran; and (4) disability discrimination under Connecticut General Statutes § 46a-71 and § 46a-77 against Lieutenant Caballero.²

Now pending are cross motions for summary judgment.³

After careful review, the Court denies Plaintiff's motion for summary judgment; and grants in part and denies in part Defendants’ motion for summary judgment.

I. BACKGROUND

A. Factual Background 4

The statements of facts and the underlying record reflect the following factual background.⁵

As of April 5, 2023, Plaintiff was incarcerated at Cheshire CI.⁶ The incident relevant to Plaintiff's claims in this action occurred on April 20, 2023.⁷

On April 20, 2023, Plaintiff was housed without a cellmate in North Block One (NB1), cell number 9.⁸ On that date, NB1 was on lockdown status—at the request of an Intelligence Supervisor—for a general facility search of the cells within the unit.⁹ A general facility search is defined by the relevant DOC Administrative Directive 6.7(3)(h) as “[a] planned and systematic search of all areas within and around a correctional facility, including the grounds, parking areas, and employee offices and work areas.”¹⁰ It is commonly referred to as shakedown when conducted within a housing unit.¹¹

On April 20, 2023, each inmate housed in NB1 was strip-searched in accordance with DOC Administrative Directive 6.7(5).¹² Directive 6.7(5)(b)(x) provides that prison officials may conduct inmate strip searches “without reasonable suspicion” “[d]uring a planned general facility search or other search conducted within a facility other than intake.” Directive 6.7(3)(p) defines a strip-search as:

a visual body cavity search which includes a systematic visual inspection of an unclothed person's hair, body cavities (to include the individual's ears, nose, mouth, under arms, soles of the fee and between the toes, rectum and genitalia).

This search shall also include a physical search of the clothing and any personal effects.13

Generally, strip searches are conducted during a housing unit shakedown to prevent inmates from thwarting or circumventing the shakedown of their cell by hiding contraband on their person.¹⁴ All inmates housed within NB1 were subjected to a search of their cell and strip search during the general facility shakedown; thus, Plaintiff was directly ordered to comply with the cell shakedown and strip search.¹⁵

On April 20, 2023, Correction Officers Baran and Bryant and a non-party, Officer Carey, approached Plaintiff's cell and attempted to conduct a search in furtherance of the shakedown of NB1.¹⁶ Correction Officers Baran and Bryant aver that Plaintiff failed to comply with their direct orders to complete a routine strip search and go to the shower area for the shakedown of his cell.¹⁷

Lieutenant Caballero declares she heard Plaintiff yelling: “Ya'll not about to shakedown my cell!” and “I'm not gonna fuckin strip, fuck that I'll go back to A.S. [Administrative Segregation].”¹⁸ Lieutenant Caballero explains that she proceeded to Plaintiff's cell after hearing his yelling.¹⁹

Defendants Caballero, Baran, and Bryant attest to their attempt to obtain Plaintiff's compliance by using de-escalation techniques.²⁰ Lieutenant Caballero states that Plaintiff expressed his feeling of being targeted after she inquired about his non-compliance with orders to submit to a strip search.²¹ She declares that despite her reassurance that the entire unit was subject to the general facility shakedown requiring a cell search and strip search of each inmate, Plaintiff would only agree to a cell search and refused to comply with the strip search.²² She avers that Plaintiff continued to disobey direct orders to comply with the strip search, and so she directed him to sit back down on his bed to have handcuffs applied.²³ She states that Plaintiff refused to do so, became agitated, swung around, swung his medical cane in one hand, and simultaneously used his other hand to strike Correction Officer Baran.²⁴ Officer Baran declares that Plaintiff struck him with his fists and elbow.²⁵

Officer Carey called the code orange.²⁶ Officer Carey avers to calling the code and alerting correctional staff that an assault on staff was in progress.²⁷

According to her declaration, she directed Officers Baran and Bryant to secure Plaintiff to the secured fixed surface of the lower bunk, but Plaintiff continued to assault staff using his elbow and fist while the verbal intervention efforts failed.²⁸ She avers to affording Plaintiff multiple opportunities to modify his behavior and to comply with correctional orders prior to her disbursement of one burst of chemical agent to his face.²⁹

Under Directive 6.5(4)(a), “A Department employee may use physical force on an inmate to maintain discipline, order, safety and security while in the performance of the employee's official duties.”³⁰ Directive 6.5(4)(d) also provides: “Staff may immediately use force and/or apply restraints when an inmate's behavior constitutes an immediate threat to self, others, property, order or the safety and security of the facility.”

Lieutenant Caballero avers that Plaintiff became compliant after she deployed the burst of chemical agent.³¹ Lieutenant Caballero directed other non-party officers to relieve Correction Officers Baran and Bryant in accordance with protocol after a report of an assault on staff.³² The handheld camera footage—which commences after the code orange was called and the chemical agent deployment—shows Defendants leaving the cell as they are relieved of their duties.³³ Due to her chemical agent exposure, Lieutenant Caballero was also relieved by a non-party correctional staff member.³⁴

Correctional staff can be heard on the audio of the handheld camera video discussing Plaintiff's “bad leg” and his need for a wheelchair.³⁵

Staff responding to the code secured Plaintiff's hands in back, applied a Universal Safety Precaution Veil, and observed that he had no contraindications to chemical agent exposure.³⁶ Plaintiff can be heard on the audio of the handheld camera video audio repeatedly requesting his asthma pump and asserting that he was attacked and assaulted; the video's audio provides no indication that Plaintiff suffered difficulty speaking or breathing prior to receiving an inhaler.³⁷

Defendants had been relieved of their duties when Plaintiff commenced his requests for his asthma pump, was placed in a wheelchair, and was escorted to medical staff who provided him with decontamination for his eyes and an inhaler to relieve the effects of the chemical agent.³⁸

The handheld camera video includes footage of Plaintiff's placement in the Restrictive Housing Unit, which shows that Plaintiff had a laceration on his left arm below his elbow.³⁹ However, the handheld camera video footage does not show that Plaintiff's laceration was actively bleeding.⁴⁰ A Medical Incident Report dated April 20, 2023, notes that Plaintiff was observed to have a small laceration to his left forearm.⁴¹

That same day, Officer Bryant issued Plaintiff a disciplinary report for Interfering with Safety or Security, which is defined as “[i]nterfering with, resisting or obstructing the execution of a staff member's official duties.”⁴² Officer Baran also issued Plaintiff a disciplinary report for Assault on a Department of Correction Employee, which is defined as “[i]ntentionally striking or attacking a Department of Correction employee with or without the use of an object or substance or acting in such a reckless manner that one's actions cause an assault of a Department of Correction employee.”⁴³

Officers Baran and Bryant declare that they each declined to press charges with the Connecticut State Police against Plaintiff.⁴⁴

Since his admission to DOC on December 5, 2019, Plaintiff has been arrested, convicted and sentenced on three separate occasions for violating Connecticut General Statutes § 53a-167c, Assault of Public Safety, Emergency Medical, Public Transit, or Health Care Personnel.⁴⁵ Plaintiff pleaded guilty to charges of attacking prison officials in violation of Connecticut General Statutes § 53a-167c on July 13, 2022, July 23, 2022, and August 27, 2022.⁴⁶

B. Procedural History

Plaintiff filed the instant action on August 3, 2023.⁴⁷

On August 7, 2023, the Court granted Plaintiff's motion to proceed under in forma pauperis status.⁴⁸

On November 17, 2023, the Court issued its Initial Review Order, permitting Plaintiff to proceed for damages (1) under 42 U.S.C. § 1983 for Eighth Amendment excessive force and deliberate indifference and First Amendment retaliation against all Defendants; (2) under the ADA and RA against Lieutenant Caballero; and (3) under state law for defamation against Lieutenant Caballero and Officer Baran and for disability discrimination in violation of Connecticut General Statutes § 46a-71 and § 46a-77 against Lieutenant Caballero.⁴⁹ The Court instructed Plaintiff to file a notice on the docket by December 18, 2023, informing the Court that he elects to proceed with service as to the claims set forth in the Initial Review Order, or to file an amended complaint by January 2, 2024.⁵⁰

On November 28, 2023, Plaintiff filed a Notice, stating that he “one hundred percent agree[d]” with the Initial Review Order.⁵¹

On October 18, 2024, Plaintiff filed a motion for summary judgment.⁵² Defendants filed their opposition to Plaintiff's motion on November 18, 2024.⁵³

On December 4, 2024, Defendants filed a motion for summary judgment.⁵⁴ With their motion for summary judgment, Defendants provided Plaintiff with a Notice to Self-Represented Litigant Concerning Motion for Summary Judgment.⁵⁵

On December 10, 2024, Plaintiff filed a motion to object to the motion for summary judgment.⁵⁶ As it was not clear whether this filing represented Plaintiff's opposition to the Defendants’ motion for summary judgment, the Court extended Plaintiff's response deadline to April 1, 2025, and advised him that it would consider Defendants’ motion for summary judgment if he failed to file a response after that date.⁵⁷

On March 17, 2025, Plaintiff filed a response indicating that his prior motion to object was his opposition to the motion for summary judgment,⁵⁸ and he filed a new motion entitled “motion standing to object” which asserted arguments in opposition to the motion for summary judgment.⁵⁹

II. LEGAL STANDARD

The Court must grant a motion for summary judgment if the pleadings, discovery materials before the Court, and any affidavits show there is no genuine issue as to any material fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when it “might affect the outcome of the suit under the governing law․ Factual disputes that are irrelevant or unnecessary” are not material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disagreements concerning immaterial or minor facts thus cannot preclude summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990). A dispute about a material fact is genuine if there is sufficient evidence upon which a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The court's role, therefore, is “not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022). Summary judgment is appropriate when a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The initial burden rests on the moving party to establish the absence of any genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). Once the movant brings forth an absence of such issues, the nonmovant must come forward with specific facts showing that there is a genuine issue for trial. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). To survive a motion for summary judgment, the nonmovant, “must do more than simply show that there is some metaphysical doubt as to the material facts [or] rely on conclusory allegations or unsubstantiated speculation.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). The mere existence of “a scintilla of evidence” in support of the nonmovant's position is insufficient; there must be enough evidence on which the jury reasonably could rule for it. Stapleton v. Barrett Crane Design & Eng'g, 725 F. App'x 28, 30 (2d Cir. 2018).

III. DISCUSSION

The parties have filed cross motions for summary judgment.

A. Plaintiff's Motion for Summary Judgment

As he is seeking monetary damages from Defendants in their individual capacities, Plaintiff must establish their personal involvement in the alleged constitutional violations. See Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020) (stating that a plaintiff must “plead and prove the elements of the underlying constitutional violation directly against the official without relying on a special test for supervisory liability”); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”).

Plaintiff's motion for summary judgment includes no statement of facts under Local Rule 56(a)1 to support a motion for summary judgment (or even a responsive statement under Local Rule 56(a)(2) in opposition to Defendant's motion). Plaintiff maintains that his verified allegations and the exhibits attached to his motion demonstrate his entitlement to an entry of summary judgment in his favor.⁶⁰

Even pro se litigants must comply with procedural rules, although the Court may more frequently excuse non-compliance by pro se litigants. Wu v. Nat'l Geospatial Intel. Agency, 3:14-cv-01603, 2017 WL 923906, at *2 (D. Conn. Mar. 8, 2017). However, “a movant's failure to comply with a district court's relevant local rules on a motion for summary judgment permits, but does not require, a court to dispose of that motion.” Tross v. Ritz Carlton Hotel Co., LLC, 928 F. Supp. 2d 498, 503 (D. Conn. 2013). In deciding whether to deny a motion for summary judgment based on failure to comply with the local rules, courts in this circuit consider whether the court can fairly determine the undisputed facts of the case without a Rule 56(a)1 statement. Capsalors v. Prudential Ins. Co., 3:20-CV-00699, 2022 WL 959747, at *7 (D. Conn. Mar. 30, 2022).

“On a motion for summary judgment, the moving party has the burden of showing the absence of a genuine issue of material fact,” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), and Plaintiff's failure to file a Rule 56(a)(1) statement supported by evidence to support his claim for entry of summary judgment in his favor has prevented him from carrying this burden. The Court should not have to comb the record on its own to determine whether Plaintiff has presented undisputed issues of fact entitling him to entry of summary judgment on any claims proceeding in this action.

Thus, based on present record, this Court cannot determine whether he is entitled to entry of summary judgment. Plaintiff's motion for summary judgment must be denied.

B. Defendants’ Motion for Summary Judgment

Defendants argue that Plaintiff cannot establish the requisite elements for claims of Eighth Amendment, First Amendment retaliation, or disability discrimination under the ADA and RA.⁶¹ In the alternative, Defendants claim qualified immunity shields them from liability on Plaintiff's constitutional claims under 42 U.S.C. § 1983.⁶²

The Court first considers whether Plaintiff cannot prevail as a matter of law on the merits of his Eighth and First Amendment claims, or alternatively, whether Defendants are entitled to be qualified immunity from liability.

1. Eighth Amendment Excessive Force

To prevail on an Eighth Amendment claim for the use of excessive force by a prison official, a prisoner bears the burden of establishing both an objective and subjective component to the claim. See Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Under the objective component, a prisoner must show that the prison official's “conduct was objectively harmful enough or sufficiently serious to reach constitutional dimensions.” Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (quotations omitted). The inquiry is context specific and “turn[s] upon ‘contemporary standards of decency.’ ” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)). “[W]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated.” Harris v. Miller, 818 F.3d 49, 64 (2d Cir. 2016) (quoting Blyden, 186 F.3d at 263). However, “not ‘every malevolent touch by a prison guard gives rise to a federal cause of action.’ ” Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)).

Although “[t]he extent of the inmate's injuries as a result of the defendant's conduct is not a factor in determining the objective component,” Williams v. Paxton, 3:21-CV-966, 2021 WL 5889271, at *4 (D. Conn. Dec. 13, 2021), “injury (or lack thereof) may be relevant to the inquiry of whether excessive force was used,” Gawlik v. Semple, 3:20-CV-564, 2021 WL 4430601, at *9 (D. Conn. Sept. 27, 2021) (citing Wilkins, 559 U.S. at 38, 130 S.Ct. 1175). A prisoner need not show that he suffered a significant injury to state a claim for use of excessive force. See Wilkins, 559 U.S. at 34, 130 S.Ct. 1175 (“[T]he use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury.” (quoting Hudson, 503 U.S. at 4, 112 S.Ct. 995)). However, a de minimis use of force will rarely be sufficient to satisfy the objective component unless the force used is also “repugnant to the conscience of mankind.” Id. at 38, 130 S.Ct. 1175. Thus, “an inmate who complains of a push or shove that causes no discernible injury almost certainly fails to state a valid excessive force claim.” Id. (quotations omitted).

To satisfy the subjective component of the excessive force standard, a prisoner must allege that the prison official “acted with a subjectively sufficiently culpable state of mind,” by showing that the official acted with “wantonness in light of the particular circumstances surrounding the challenged conduct.” Harris, 818 F.3d at 63 (citation modified). The core inquiry in making such a determination “is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)). The extent of the inmate's injuries is one factor courts consider in determining whether correctional staff could have, in good faith, believed the force used was necessary under the circumstances. Hudson, 503 U.S. at 7, 112 S.Ct. 995.

Other factors include “the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Id. (quotations omitted).

An officer's use of a chemical agent against a recalcitrant inmate is a constitutional violation only where the use of the chemical agent is malicious and sadistic. Hudson, 503 U.S. at 5-6, 112 S.Ct. 995. That the use may have been objectively unreasonable, without more, is insufficient to establish an Eighth Amendment claim. Britton v. Rodriguez, 3:21-CV-1257, 2022 WL 1211665, at *4 (D. Conn. Apr. 25, 2022) (citing cases) (considering use of chemical agent against inmate who deliberately violated direct orders). Correctional staff's use of a chemical agent on a “recalcitrant inmate” to force compliance with direct orders is not “malicious and sadistic,” but rather a good faith effort to restore order. Vazquez v. Spear, 12-CV-6883, 2014 WL 3887880, at *5 (S.D.N.Y. Aug. 5, 2014).

Officers are liable not only when they use excessive force themselves, but also when they fail to intervene to stop the excessive use of force by another officer when in a position to observe the conduct and with time to intervene. See Sloley v. VanBramer, 945 F.3d 30, 46-47 (2d Cir. 2019). “Liability attaches on the theory that the officer, by failing to intervene, becomes a ‘tacit collaborator’ in the illegality.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016).

2. Qualified Immunity

Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity “affords government officials ‘breathing room’ to make reasonable—even if sometimes mistaken—decisions.” Distiso v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (quoting Messerschmidt v. Millender, 565 U.S. 535, 553, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012)). “The qualified immunity standard is ‘forgiving’ and ‘protects all but the plainly incompetent or those who knowingly violate the law.’ ” Grice v. McVeigh, 873 F.3d 162, 166 (2d Cir. 2017) (quoting Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010)).

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. 7, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (internal quotations and citations omitted). The Court has discretion to determine the order in which it will address the inquiries required when assessing the applicability of qualified immunity. See Johnson v. Perry, 859 F.3d 156, 170 (2d Cir. 2017) (quoting Pearson, 555 U.S. at 236, 129 S.Ct. 808).

A right is clearly established if, “at the time of the challenged conduct ․ every ‘reasonable official would have understood that what he is doing violates that right.’ ” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). There is no requirement that a case have been decided which is directly on point, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. In addition, qualified immunity protects state actors when it was objectively reasonable for the state actor to believe that his conduct did not violate a clearly established right. Manganiello v. City of New York, 612 F. 3d 149, 165 (2d Cir. 2010). “If a reasonable officer might not have known for certain that the conduct was unlawful—then the officer is immune from liability.” Ziglar v. Abbasi, 582 U.S. 120, 152, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017); Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”); Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (“[I]f the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants’ conduct under the circumstances, summary judgment for the officers is appropriate.”). But an officer's conduct is objectively unreasonable when no officer of reasonable competence could have made the same choice in similar circumstances. Id. at 420-21.

a. Excessive Force Merits

In his verified allegations, Plaintiff asserts that Defendants attacked him, sprayed him with the chemical agent multiple times, and that Officer Baran cut his forearm with a blade.⁶³ Defendants argue that they are entitled to entry of summary judgment because their use of force was justified to gain his compliance with their direct orders; and they did not use force in a malicious or sadistic manner or apply an unreasonable amount of force in response to Plaintiff's conduct.⁶⁴

Defendants maintain that Plaintiff's version of the events is “blatantly contradicted by the record, so that no reasonable jury could believe it.”⁶⁵ The determination of whether Plaintiff was subjected to any malicious and sadistic use of force turns on what transpired in the cell. The two videos submitted—the surveillance footage ⁶⁶ and the handheld camera footage ⁶⁷ —are essential to this inquiry.⁶⁸

The surveillance video footage shows correctional staff running into the unit, correctional officers leaving the cell, staff bringing a wheelchair to Plaintiff's cell, placing Plaintiff (with the safety veil over his head) into the wheelchair outside of his cell door, and wheeling him backwards in the wheelchair out of the unit.⁶⁹ The surveillance footage affords no view into the interior of the cell.⁷⁰

The handheld camera video commences after the deployment of the chemical agent; it shows Plaintiff being handled inside of his cell by multiple staff members, Lieutenant Caballero exhibiting symptoms from the effects of the chemical agent, and all three Defendants leaving the cell.⁷¹ The viewer can discern that Plaintiff was restrained from behind while in his cell, and that correctional staff indicated he had a “bad leg,” calling for the use of a wheelchair.⁷² The video shows Plaintiff—with the precautionary safety veil over his head—being lifted and placed in the wheelchair by several correctional staff members.⁷³ In addition, the video includes footage depicting Plaintiff's escort to medical staff who cleaned his eyes and provided him with an inhaler prior to his placement in the RHU,⁷⁴ and it shows that he had the laceration on his left arm.⁷⁵

But like the surveillance video, the handheld camera video does not depict the events prior to the use of force or the actual use of force in the cell so as to establish—as undisputed—that Plaintiff was subject to use of force for legitimate penological purposes.⁷⁶ Thus, the Court concludes that the record in this case (including the video footage) does not present so clear a depiction of the events that no reasonable jury could believe Plaintiff's version of the events. A jury considering Plaintiff's testimony about his own conduct and his treatment by Defendants on April 20, 2023, could determine that Defendants subjected him to excessive force.

Accordingly, the Court cannot resolve whether Defendants’ use of force was justified by legitimate penological reasons based on the present record without assessing the credibility of the competing representations. Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (“Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.”). The motion for summary judgment must be denied on the merits.

b. Excessive Force: Qualified Immunity

The qualified immunity analysis also turns on factual questions about whether the use of force was justified by legitimate penological reasons. Here, the record does not establish as an undisputed fact that Plaintiff refused to comply with Defendants’ direct orders; nor is it undisputed that Defendants did not apply force beyond what was necessary to obtain Plaintiff's compliance. So the Court cannot assess, as a matter of law, based on the present record, whether it was objectively reasonable for these Defendants to believe their conduct under the circumstances did not violate the Eighth Amendment.

Accordingly, the motion for summary judgment is denied as to Plaintiff's Eighth Amendment excessive force claims.

3. Eighth Amendment Deliberate Indifference

“The Eighth Amendment prohibits ‘deliberate indifference to serious medical needs of prisoners,’ ” Spavone v. N.Y. Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 104–105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Deliberate indifference can include indifference “manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 105, 97 S.Ct. 285. To state a claim for deliberate indifference to a serious medical need, a plaintiff's claim must satisfy both objective and subjective elements. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). First, the alleged deprivation “must be, in objective terms, sufficiently serious.” Id. (quotations and citations omitted). “Second, the charged official must act with a sufficiently culpable state of mind.” Id.

Under the objective prong, the inmate's medical need or condition must be “a serious one.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Under Second Circuit law, the objective serious medical need inquiry is fact-specific and “must be tailored to the specific circumstances of each case.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003). “[I]f the unreasonable medical care is a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical condition is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (citing Smith, 316 F.3d at 185–86). Factors relevant to the seriousness of a medical condition include whether “a reasonable doctor or patient would find [it] important and worthy of comment,” whether the condition “significantly affects an individual's daily activities,” and whether it causes “chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citations omitted). Moreover, “the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).

To satisfy the second subjective prong, a prison official or medical staff member must have been actually aware of a substantial risk that the inmate would suffer serious harm as a result of his or her actions or inactions. See Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). The defendants “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “[M]ere negligen[t]” conduct is insufficient. Id. at 835, 114 S.Ct. 1970.

a. Deliberate Indifference: Merits

Plaintiff is proceeding on a claim that Defendants acted with deliberate indifference to his medical needs.⁷⁷ He alleges that he advised Lieutenant Caballero that he had asthma and his exposure to the chemical agent could “kill” him, and he begged for help because he could not breathe and was bleeding but received no medical assistance.⁷⁸ He maintains that Lieutenant Caballero refused to provide him with his inhaler and stated she hoped he would bleed to death.⁷⁹

i. Objective Element: Asthma

As an initial matter, courts within the Second Circuit have held that the fact that an inmate is asthmatic does not, by definition, constitute a serious medical need. Paschal-Barros v. Balatka, 3:18-CV-2021, 2020 WL 5230994, at *5 (D. Conn. Sept. 1, 2020) (granting summary judgment on inmate's Eighth Amendment claim of defendants’ deliberate indifference to his serious medical condition of asthma due to his chemical agent exposure), aff'd, 3:20-CV-3150, 2021 WL 5268000 (2d Cir. Nov. 12, 2021). A plaintiff does not satisfy the objective element of the Eighth Amendment where he merely requires an inhaler but did not suffer an asthmatic attack or require medical attention due to his chemical agent exposure. See, e.g., id. at *5. Additionally, the residual effects of a chemical agent exposure generally do not constitute a serious medical need. See Alston v. Butkiewicus, 3:09-CV-207, 2012 WL 6093887, at *16 (D. Conn. Dec. 7, 2012) (citing cases).

Here, no evidence supports an inference that Plaintiff suffered from a severe asthmatic condition that rendered him at a substantial risk of serious harm after a chemical agent exposure. Instead, review of the handheld camera video footage reveals that Plaintiff was able to speak clearly and was not having an asthmatic fit after he was exposed to the chemical agent prior to the time he received an inhaler.⁸⁰ There is no evidence in the record to suggest that Plaintiff suffered more than residual effects from the chemical agent exposure. Thus, after review of the record, the Court concludes that no reasonable finder of fact could conclude that the chemical agent deployment exposed Plaintiff to a serious risk of harm due to his asthmatic condition.

ii. Objective Element: Laceration

Plaintiff claims that the video shows he was bleeding for a long period with no medical assistance.⁸¹ But the handheld camera video shows that Plaintiff had a small laceration on his left arm that was not actively bleeding (although it may have been a recent injury).⁸² No evidence in the record suggests that Plaintiff suffered from any serious bleeding or that he was at any risk of serious harm and required immediate attention for his laceration. As the facts must be viewed “in the light depicted” by the video, see Scott, 550 U.S. at 380-81, 127 S.Ct. 1769, the record fails to substantiate that Plaintiff suffered an objectively serious laceration or bleeding on April 20, 2023.⁸³ No finder of fact could conclude based on the present record that Plaintiff's laceration presented an objectively serious medical condition.

iii. Subjective Element

Even assuming Plaintiff suffered from a serious asthmatic condition and laceration, the record fails to substantiate his claim that Defendants acted with deliberate indifference to his medical needs. No evidence suggests Defendants consciously disregarded any substantial risk of serious harm to Plaintiff posed by his chemical agent exposure or the laceration on his arm. See Blaine v. Burnes, 3:20-CV-1039, 2020 WL 5659101, at *7 (D. Conn. Sept. 23, 2020) (“[I]t is all but axiomatic that where the condition itself is not sufficiently serious, there can be no finding that the defendants were aware that he would be subjected to a substantial risk of harm as a result of their actions or inactions with respect to his treatment for the condition.”).

There is no dispute that Defendants were all relieved of their duties prior to the time that Plaintiff commenced his requests for his inhaler and placed in a wheelchair for his escort out of the unit.⁸⁴ The handheld camera footage confirms Plaintiff repeatedly requested his inhaler, the attending officers responded to his medical needs by reviewing his medical record and providing him with a wheelchair for his escort to medical staff, and that medical staff provided him an inhaler and decontamination for his eyes to relieve the effects from the chemical agent.⁸⁵ No evidence supports an inference that Defendants had any personal involvement with the provision of medical care for Plaintiff after they were relieved of their duties.

Based on the present record, no reasonable jury could conclude that any Defendant should be liable for Eighth Amendment deliberate indifference to Plaintiff's serious needs. See Wright, 21 F.3d at 501 (2d Cir. 1994) (“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”).

Accordingly, the Court will grant the motion for summary judgment in Defendants’ favor on the merits the Eighth Amendment deliberate indifference claims.

b. Qualified Immunity

Alternatively, the record demonstrates that it was objectively reasonable for Defendants to believe that they did not violate the Eighth Amendment due to deliberate indifference to Plaintiff's medical needs under the circumstances. Thus, the Court grants the motion for summary judgment on Plaintiff's Eighth Amendment deliberate indifference claims on the alternative ground of qualified immunity.

4. First Amendment Retaliation

To establish a First Amendment retaliation claim, a plaintiff must show “(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.” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).

If a plaintiff establishes these elements, a defendant may still avoid liability by establishing that he “would have taken the adverse action even in the absence of the protected conduct.” Brandon v. Kinter, 938 F.3d 21, 40 (2d Cir. 2019) (citation modified). A plaintiff has the initial burden of showing that an improper motive played a substantial part in defendant's action, but the burden shifts to defendant to show it would have taken exactly the same action absent the improper motive. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994).

Protected speech or activity includes filing a lawsuit, an administrative complaint, or a prison grievance. See Dolan, 794 F.3d at 294 (“It is well established that retaliation against a prisoner for pursuing a grievance violates the right to petition [the] government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.”) (citation modified); Booth v. Comm'r of Corr., 19-CV-100, 2019 WL 919580, at *5 (D. Conn. Feb. 25, 2019) (“Filing complaints and grievances is protected activity.”) (citation modified).

The Second Circuit has instructed courts to “properly approach prisoner retaliation claims ‘with skepticism and particular care,’ 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), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).

Thus, “only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action” for First Amendment purposes. Wrobel v. County of Erie, 692 F.3d 22, 31 (2d Cir. 2012) (citation modified). Although the standard is well-settled, the inquiry into whether an action meets that standard is context-specific and “must be ‘tailored to the different circumstances in which retaliation claims arise.’ ” Dawes, 239 F.3d at 493 (citation modified). Because the inquiry is objective, the focus is not whether a particular individual was in fact deterred from engaging in further protected conduct, but instead whether a reasonable person would have been. See Brandon, 938 F.3d 21, 40 (2d Cir. 2019) (“[A] prisoner ‘should not be denied remedy because his extraordinary efforts resulted in the resolution of grievances that would have deterred a similarly situated individual of ordinary firmness.’ ”).

In order to allege causation, the inmate must state facts “suggesting that the protected conduct was a substantial or motivating factor in the [defendant's] decision to take action against [him].” Moore v. Peters, 92 F. Supp. 3d 109, 121 (W.D.N.Y. 2015) (quoting Burton v. Lynch, 664 F. Supp. 2d 349, 367 (S.D.N.Y. 2009)). A plaintiff alleging a retaliation claim bears the initial “burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials’ decision to discipline the plaintiff.” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).

a. First Amendment: Merits

Plaintiff is proceeding on a claim that Defendants Baran, Bryant, and Caballero retaliated against him because their co-worker, Correction Officer Wagner, is a defendant in his federal civil rights case, Jones v. Wagner, 3:20-cv-475 (VAB).⁸⁶

Defendants concede Plaintiff's lawsuit against Correction Officer Wagner constitutes protected conduct under the First Amendment.⁸⁷ Defendants challenge the third and fourth elements of Plaintiff's retaliation claim.

i. Adverse Action

Defendants argue that Plaintiff did not sustain adverse action because Defendants lawfully applied force to obtain his compliance with direct correctional orders.⁸⁸ As previously discussed, the Court cannot determine as a matter of law—based on the present record—that Defendants did not subject Plaintiff to a use of force beyond what was necessary for legitimate penological purposes after they entered his cell.

Defendants maintain further that Plaintiff cannot show he was deterred from exercising his constitutional rights as result of their conduct on April 20, 2023, because he thereafter filed this action and other lawsuits.⁸⁹ However, the adverse action test “is objective, and the plaintiff is not required to show that he was actually deterred.” Brandon, 938 F.3d at 40.

Thus, the Court concludes that the present record supports a genuine issue of fact as to whether Defendants subjected Plaintiff to adverse action on April 20, 2023.

ii. Causation

Defendants assert that Plaintiff cannot show a causal connection between his protected conduct and the adverse action.⁹⁰ “Some of the facts often used to determine retaliatory motive include (1) temporal proximity between the protected conduct and the alleged retaliatory act, (2) the prisoner's prior good disciplinary record, (3) a finding of not guilty at the disciplinary hearing, and (4) statements by the officials showing motivation.” Ramos v. Semple, 3:18-CV-1459, 2019 WL 2422875, at *2 (D. Conn. June 10, 2019).

Defendants first claim Plaintiff cannot establish causation on the basis of temporal proximity between the adverse action on April 20, 2023, and his lawsuit filed against Officer Wagner on filed on April 3, 2020. See, e.g., Ford v. Deacon, 793 F. App'x 13, 16 (2d Cir. 2019) (summary order) (noting that “temporal proximity alone, particularly where the time lapse is four months, is insufficient to establish a retaliation claim”). The Court notes, however, that the legal action against Officer Wagner remained pending until it settled on August 16, 2024.⁹¹ Thus, temporal proximity may support an inference of causation because the adverse action on April 20, 2023, occurred while Plaintiff was still pursuing his litigation against Officer Wagner.

Nonetheless, even where there is temporal proximity between protected conduct and an adverse action, “some further evidence of retaliatory animus” is required before an inmate's retaliation claim may proceed to trial. Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017) (summary order) (citing Bennett v. Goord, 343 F.3d 133, 138-39 (2d Cir. 2003)).

Defendants contend there is no plausible inference in the record that Defendants were aware of Plaintiff's legal action against Correction Officer Wagner.⁹² Lieutenant Caballero, Officer Baran, and Officer Bryant averred that, although familiar with Officer Wagner, they were not aware of Plaintiff's litigation against him and never discussed any lawsuits filed by Plaintiff with Wagner.⁹³ In his verified allegations, Plaintiff asserts that Officer Baran asked him whether he had “problems with his co-worker Wagner” and stated that his co-workers had asked him to “make sure” to get Plaintiff's legal work and his cane and that he should “get [Plaintiff] walking on camera so it don't look like Wagner hurt him to[o] bad.”⁹⁴

A jury considering Plaintiff's testimony and his pending litigation at the time could determine that Defendants acted with a retaliatory animus when they subjected Plaintiff to the use of force on April 20, 2023. Accordingly, the record raises disputed issues of fact that preclude a determination as a matter of law on the issue of causation. See Harvin v. Cheney, 3:23-CV-328, 2025 WL 1616682, at *17 (D. Conn. June 20, 2025) (concluding plaintiff's verified allegations raised disputed issues of fact).

iii. Same Action Even in Absence of Protected Conduct

Defendants maintain that they were actively engaging in a shakedown of Plaintiff's unit to locate and remove contraband.⁹⁵ Thus, they argue, regardless of any retaliatory motivation, the same conduct would have occurred. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Mount Healthy Sch. Distr., 429 U.S. at 287, 97 S.Ct. 568); see Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) (“Regardless of the presence of retaliatory motive, however, a defendant may be entitled to summary judgment if he can show dual motivation, i.e., that even without improper motivation the alleged retaliatory action would have occurred.”).

It is not disputed that NB1 was on lockdown status at the request of an Intelligence Supervisor for a general facility search of the cells within the unit on April 20, 2023.⁹⁶ But the Court has previously determined the existence of disputed issues of fact about whether Defendants applied force beyond any legitimate penological justification on April 20, 2023. These same questions of fact preclude Defendants from demonstrating—as a matter of law—that the same use of force would be applied regardless of any retaliatory motivation. Accordingly, the Court denies the motion for summary judgment on the merits of Plaintiff's retaliation claim.

b. Qualified Immunity

Because the qualified immunity analysis turns on factual questions regarding causation and the circumstances that gave rise to Defendants’ conduct (the need for force to serve penological interests and the actual force used), the Court cannot assess, as a matter of law, whether it was objectively reasonable for Defendants to believe that their conduct at the time did not violate Plaintiff's clearly established right to be free from retaliation for his legal action. See Treizon Lopez v. Semple, 3:18-CV-1907, 2019 WL 2548136, at *4, *6 (D. Conn. June 20, 2019) (noting qualified immunity would not apply if correction officer carried through on his threat to ensure excessive punitive action to retaliate against a prisoner for refusal to cooperate in an internal investigation). Thus, the motion for summary judgment must be denied on Plaintiff's claim of First Amendment retaliation.

5. ADA/RA 97

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. This provision applies to state prisoners. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). “Because the standards under both statutes are the same, courts treat claims under the ADA and RA identically.” Laboy v. Beaulieu, 3:18-CV-361, 2019 WL 2076810, at *2 (D. Conn. May 10, 2019) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)).

To establish a claim under Title II, a plaintiff must demonstrate (1) that he is a qualified individual with a disability; (2) that he was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to his disability. See 42 U.S.C. § 12132; Tardif v. City of New York, 991 F.3d 394, 404 (2d Cir. 2021) (quoting Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016)).

“The term ‘disability’ means, with respect to an individual—(a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). “Major life activities” include but are not limited to “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).

“A qualified individual can base a discrimination claim on any of “three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).

A plaintiff must show that he was “by reason of [his]disability, ․ excluded from participation in, or ․ denied the benefits of the services, programs, or activities of a public entity, or ․ subjected to discrimination by any such entity[.]” 42 U.S.C. § 12132; Henrietta D., 331 F.3d at 272, 276.

a. ADA and RA: Merits

Plaintiff is proceeding for damages on claims of disability discrimination against Lieutenant Caballero in her official capacity on the basis of her alleged failure to provide him a wheelchair and cane, which thereby rendered him unable to access or benefit from the DOC facilities.⁹⁸ Specifically, he asserts that he was required to walk without his assistive devices from April 20, 2023, until his transfer away from Cheshire CI “around May 5, 2020.”⁹⁹

As the handheld camera video footage indicates that Plaintiff has a “bad leg” requiring a wheelchair, the Court assumes for purposes of this ruling that Plaintiff is a qualified individual with a disability requiring him to use assistive devices of a wheelchair or cane.¹⁰⁰

Defendants argue that the Eleventh Amendment bars claims for damages under the ADA and RA against a state actor in his or her official capacity.¹⁰¹ In United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), the Supreme Court stated that “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity[.]” Thereafter, the Second Circuit recognized that the Supreme Court “left open the question of whether Congress may validly abrogate sovereign immunity with respect to a particular class of misconduct that violates Title II but does not violate the Fourteenth Amendment.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 194 (2d Cir. 2015).

Defendants contend that the Second Circuit has now clarified that a plaintiff may not pursue a damages claim against state actor in his or her official capacity.¹⁰² In support of their position, Defendants rely primarily upon two recent decisions. In Iwelu v. New York State Off. of Mental Health, the Second Circuit noted that there “is no individual liability” under the ADA. Id. at 2024 WL 2175938, at *2 n.5 (2d Cir. May 15, 2024); and in Yerdon v. Poitras, the Circuit held that Title I does not permit a plaintiff to bring an employment discrimination claim against individual employees. Id. at 120 F.4th 1150, 1155-57 (2d Cir. 2024).

Notably, both of these cases concerned Title I employment discrimination claims cases. As the Second Circuit recognized in Yerdon, Title I and Title II are analyzed differently with respect to the Eleventh Amendment. Id. at 1153 (noting “the district court analyzed the immunity question believing that Yerdon's claims arose under Title II of the ADA, which pertains to discrimination in the provision of public services․. But this dispute involves allegations of employment discrimination, which are clearly governed by Title I of the ADA.”). Absent authority providing that Title I and Title II are subject to the same analysis relevant to Eleventh Amendment immunity, the Court is not persuaded that Iwelu and Yerdon preclude an ADA Title II or RA claim for damages against a state actor in his or her official capacity.

Nonetheless, the Court concludes that no reasonable jury—reviewing the present record—could render a verdict in favor of Plaintiff on his claims of Title II ADA and RA violation against Lieutenant Caballero for failure to provide him with a wheelchair or cane.

It cannot be disputed correctional staff recognized Plaintiff's need for a wheelchair, provided him with a wheelchair, and transported him in the wheelchair to receive medical attention before his placement in the Restrictive Housing Unit.¹⁰³ Additionally, it is not disputed that Lieutenant Caballero was relieved from her duty prior to Plaintiff's placement and escort in the wheelchair.¹⁰⁴ Nor has Plaintiff submitted any evidence to suggest that he was “by reason of such disability, ․ excluded from participation in or ․ denied the benefits of the services, programs, or activities of a public entity, or ․ subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

As no evidence substantiates a violation of Plaintiff's disability rights under the ADA and RA, the Court grants the motion for summary judgment in Defendant Caballero's favor.

C. State Law Claims

“[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy ․” 28 U.S.C. § 1367(a). Thus, a district court may exercise supplemental jurisdiction over state law claims where the relationship between a plaintiff's federal and state claims present “but one constitutional ‘case’ ” and “derive from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Wisconsin Dep't. of Corr. v. Schacht, 524 U.S. 381, 387, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (“[F]ederal courts [may] hear and decide state-law claims along with federal-law claims when they are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.”). State law and federal claims are part of the same case or controversy when they “derive from a common nucleus of operative fact.” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004). If a “plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding,” the Court will generally exercise supplemental jurisdiction if “judicial economy, convenience and fairness to litigants” weigh in favor of hearing the state claims at the same time. Id. at 725-26, 86 S.Ct. 1130.

Plaintiff seeks damages for violation of the Connecticut General Statutes § 46a-71 and § 46a-77 for disability discrimination against Lieutenant Caballero in her official capacity and for defamation against Lieutenant Caballero and Correction Officer Baran in their individual capacities.¹⁰⁵ These claims derive from the same operative facts concerning the events on April 20, 2023.

1. Connecticut General Statutes §§ 46a-71 and 46a-77

Section 46(a)-71 provides:

(a) All services of every state agency shall be performed without discrimination based upon race, color, religious creed, sex, gender identity or expression, marital status, age, national origin, ancestry, intellectual disability, mental disability, learning disability, physical disability, including, but not limited to, blindness, status as a veteran or status as a victim of domestic violence.

(b) No state facility may be used in the furtherance of any discrimination, nor may any state agency become a party to any agreement, arrangement or plan which has the effect of sanctioning discrimination.

(c) Each state agency shall analyze all of its operations to ascertain possible instances of noncompliance with the policy of sections 46a-70 to 46a-78, inclusive, and shall initiate comprehensive programs to remedy any defect found to exist.

Conn. Gen. Stat. § 46a-71. Section 46a-77(c) requires that each state agency comply “in all of its services, programs and activities with the provisions of the [ADA] to the same extent that it provides rights and protections for persons with physical or mental disabilities beyond those provided for by the laws of this state.” Conn. Gen. Stat. § 46a-77(c).

Because § 46a-77(c) requires compliance with the ADA, the same analysis applies to Plaintiff's state disability claims as applied to his ADA claims. Paschal-Barros v. Quiros, 3:21-CV-698, 2022 WL 124544, at *11 (D. Conn. Jan. 13, 2022) (citing state court decisions).

Plaintiff asserts that Lieutenant Caballero violated his state statutory disability rights by refusing to provide him a cane or wheelchair from April 20, 2023 until his transfer away from Cheshire CI “around May 5, 2023.”¹⁰⁶ Plaintiff has not submitted evidence to support this claim, and the record fails to substantiate any inference of disability discrimination for failure to provide him with a cane or wheelchair to assist with his disability. Accordingly, for the same reasons discussed as to the ADA and RA claims, the Court grants the motion for summary judgment in Lieutenant Caballero's favor on Plaintiff's claims under Connecticut General Statutes § 46a-71 and § 46a-77.

2. Defamation

“Defamation is comprised of the torts of libel and slander.” Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 850, 863 A.2d 735 (2005) (citation modified). Slander is oral defamation whereas libel is written defamation. Id.

“To establish a prima facie case of defamation under Connecticut state law, the plaintiff must demonstrate that (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement.” Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009). As to the first element, a defamatory statement is a “communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․” Bailey v. Nexstar Broadcasting, Inc., 3:19-CV-00671, 2020 WL 1083682, at *5 (D. Conn. Mar. 6, 2020). It is for the Court to decide whether the defendant's statements were capable of bearing a defamatory meaning, and it is for the jury to decide if the defendant's statements were, in fact, so understood by its recipients. Dongguk Univ. v. Yale Univ., 3:08-CV-0441, 2012 WL 441250, at *6 (D. Conn. Feb. 10, 2012) (citing Restatement (Second), Torts § 614 (1977)) vacated on other grounds on reconsideration in part, 873 F. Supp. 2d 460 (D. Conn. 2012), aff'd, 734 F.3d 113 (2d Cir. 2013).

Where the defamation involves a statement that charges a crime involving moral turpitude or which is punishable by imprisonment, a plaintiff brings a claim of defamation per se. See Skakel v. Grace, 5 F. Supp. 3d 199, 206 (D. Conn. 2014); Gleason v. Smolinski, 319 Conn. 394, 430 n.31, 125 A.3d 920 (Conn. 2015). In such a case, “injury to a plaintiff's reputation is conclusively presumed such that the plaintiff need neither plead nor prove it.” Skakel, 5 F. Supp. 3d at 207. Relevant to the instant case, assault on a public officer is punishable by imprisonment in Connecticut. See Conn. Gen. Stat. § 53a-167c (“If any person who is confined in an institution or facility of the Department of Correction is sentenced to a term of imprisonment for assault of an employee of the Department of Correction under this section, such term shall run consecutively to the term for which the person was serving at the time of the assault.”). However, truth is an affirmative defense to defamation, and the determination of the truthfulness of a statement is a question of fact for the jury. Skakel, 5 F. Supp. 3d at 207; see Gleason, 319 Conn. at 431, 125 A.3d 920 (“It is well settled that for a claim of defamation to be actionable, the statement must be false ․ and under the common law, truth is an affirmative defense to defamation.”(citation modified)).

Plaintiff contends that Lieutenant Caballero and Officer Baran made false statements about his having assaulted DOC staff on April 20, 2023.¹⁰⁷ Defendants argue that such claim is “unfounded” and Plaintiff's defamation per se claims must fail because he previously admitted to assaulting prison officials in violation of Connecticut General Statutes § 53a-167c (Assault on a Public Officer) in July and August 2022.¹⁰⁸

Defendants do not, however, address whether Plaintiff admitted to assaulting staff on April 20, 2023, or that he pleaded guilty to his disciplinary report for assault on staff issued by Officer Baran on April 20, 2023. Nor do they argue that any privilege or immunity applies to Plaintiff's claim of defamation. Construing all reasonable inferences in favor of Plaintiff, the Court cannot determine as a matter of law that Defendants did not make a false statement about Plaintiff assaulting prison staff on April 20, 2023.

Accordingly, the motion for summary judgment must be denied. The Court will leave Plaintiff to his proof.

IV. CONCLUSION

For the foregoing reasons, the Court enters the following orders:

• Plaintiff's motion for summary judgment [ECF 103] is DENIED;

• Defendants’ motion for summary judgment [ECF 116] is GRANTED in part and DENIED in part.

• Defendants’ motion for summary judgment is GRANTED as to Plaintiff's claims of Eighth Amendment deliberate indifference against all Defendants, and violation of his disability rights under the Title II of ADA, the RA, and Connecticut General Statutes § 46a-71 and § 46a-77 against Lieutenant Caballero.

• It is DENIED as to Plaintiff's claims of Eighth Amendment excessive force and First Amendment retaliation against Correction Officer Baran, Correction Officer Bryant and Lieutenant Caballero, and as to his state law claims of defamation against Lieutenant Caballero and Correction Officer Baran.

SO ORDERED.

FOOTNOTES

1.   Compl., ECF 1.

2.   Initial Review Order (“IRO”), ECF 16.

3.   Pl.’s Mot. for Summ. Judg., ECF 103; Defs.’ Mot. for Summ. Judg., ECF 116.

5.   The Court cites only to the relevant paragraph in the Local Rule 56(a)1 Statement where a party's cited evidence establishes an undisputed fact. The page numbers cited to in this ruling regarding any documents that have been electronically filed refer to the page numbers imprinted by the electronic case filing system on the header of the documents and not to the page numbers of the original documents, if any.

6.   Defendants’ Local Rule 56(a)1 (“Defs.’ L.R.”), ECF 116-2, ¶ 1.

7.   Id. ¶ 2.

8.   Id. ¶¶ 3, 12.

9.   Id. ¶ 4.

10.   Id. ¶¶ 5-6; see Defs.’ Ex. L, A.D. 6.7 (effective August 15, 2014), ECF 136-1.

11.   Defs.’ L.R. ¶ 7.

12.   Id. ¶ 8; see Defs.’ Ex. L, A.D. 6.7.

13.   Defs.’ L.R. ¶ 7 (citation modified).

14.   Id. ¶ 11.

15.   Id. ¶¶ 22-23. See Defs.’ Ex. A, Caballero Decl. ¶ 23, ECF 116-4.

16.   Id. ¶ 13.

17.   See Defs.’ Ex. E, Baran Decl. ¶¶ 17-18, ECF 116-7; Defs.’ Ex. K, Bryant Decl. ¶¶ 17-19, ECF 116-11.

18.   Defs.’ Ex. A, Caballero Decl. ¶ 18.

19.   See id. ¶ 19.

20.   Defs.’ Ex. A, Caballero Decl. ¶ 19; Defs.’ Ex. E, Baran Decl. ¶ 19; Defs.’ Ex. K, Bryant Decl. ¶¶ 19-20.

21.   Defs.’ Ex. A, Caballero Decl. ¶¶ 19-20.

22.   Id. ¶¶ 21-22.

23.   Defs.’ Ex. A, Caballero Decl. ¶¶ 25-26; see also Defs.’ Ex. E, Baran Decl. ¶ 21; Defs.’ Ex. K, Bryant Decl. ¶ 18.

24.   Defs.’ Ex. A, Caballero Decl. ¶¶ 26-27; see also Defs.’ Ex. E, Baran Decl. ¶ 23.

25.   Id. ¶ 24.

26.   Defs.’ L.R. ¶ 28; see Defs.’ Ex. I, Handheld Camera Video CCI-VP-23-501 (:08-:09).

27.   Defs.’ Ex. F, Carey Decl. at ¶ 19, ECF 116-8.

28.   Defs.’ Ex. A, Caballero Decl. ¶¶ 30-32; see also Defs.’ Ex. E, Baran Decl. ¶¶ 27-28; Defs.’ Ex. K, Bryant Decl. ¶ 25.

29.   Defs.’ Ex. A, Caballero Decl. ¶¶ 34-35.

30.   Defs.’ L.R. ¶ 36; Defs.’ Ex. C A.D. 6.5, ECF 116-6.

31.   Defs.’ Ex. A, Caballero Decl. at ¶ 40.

32.   Defs.’ L.R. ¶¶ 41, 44.

33.   See Defs.’ Ex. I, Handheld Camera Video CCI-VP-23-501 (:09-:55), ECF 125; see Defs.’ Ex. A, Caballero Decl. at ¶¶ 54-57 (identifying Defendants in the video).

34.   Defs.’ L.R. ¶¶ 41, 46.

35.   Defs.’ Ex. I, Handheld Camera Video CCI-VP-23-501 (:40-:55); see also Defs.’ L.R. ¶ 39.

36.   Defs.’ L.R. ¶ 40; see Defs.’ Ex. I, Handheld Camera Video CCI-VP-23-501 (:53-3:39).

37.   See id. 1:13-10:47.

38.   See Defs.’ L.R. ¶¶ 42, 44, 47-48; Defs.’ Ex. I, Handheld Camera Video CCI-VP-23-501 (:17-10:50).

39.   Id. 15:00-15:07.

40.   Id. 00:10-17:39.

41.   Defs.’ Ex. D, Incident Reports, at 25, ECF 116-23. The Medical Incident Report indicates that Plaintiff refused to sign it. Id.

42.   Defs.’ L.R. ¶¶ 50-51; Defs.’ Ex. M, A.D. 9.5 (Att. B), ECF 137-1.

43.   Defs.’ L.R. ¶¶ 52-53; Defs.’ Ex. M, A.D. 9.5 (Att. B).

44.   Defs.’ Ex. E, Baran Decl. at ¶ 41; Defs.’ Ex. K, Bryant Decl. at ¶ 40.

45.   Defs.’ L.R. ¶¶ 70-71.

46.   Id. ¶¶ 72-75.

47.   Compl.

48.   Order, ECF 8.

49.   IRO.

50.   Id.

51.   Notice, ECF 17.

52.   Pl.’s Mot. for Summ. Judg., ECF 103.

53.   Defs.’ Opp., ECF 109.

54.   Defs.’ Mot. for Summ. Judg., ECF 116.

55.   See Notice, ECF 116-3.

56.   Pl.’s Obj. 1, ECF 118.

57.   Order, ECF 127.

58.   ECF 128.

59.   Pl.’s Obj. 2, ECF 129.

60.   Pl.’s Mot. for Summ. Judg. at 1-2.

61.   Defs.’ Mem. at 8-24, ECF 116-1.

62.   Id. at 26.

63.   Compl. at 4-5, 10.

64.   Defs.’ Mem. at 10-12.

65.   Defs.’ Mem. at 10.

66.   Defs.’ Ex. H.

67.   Defs.’ Ex. I.

68.   See Defs.’ Exhibit, ECF 125.

69.   See Defs.’ Ex. H, Surveillance Footage CCI-VP-23-555 North Block 1 PTZ (.58:50-1:04.10).

70.   There is a second video under Defendants’ exhibit H that shows a stairway, and staff gathered on upper tier and on the lower tier (presumably to observe the response to the code called by Officer Carey). It does not show the area around Plaintiff's cell and appears not to present evidence that bears on the conduct at issue in this matter.

71.   See Defs.’ Ex. I, Handheld Camera Video CCI-VP-5018 (:09-:55); see Defs.’ Ex. A, Caballero Decl. at ¶¶ 54-57 (identifying Defendants in the video).

72.   Defs.’ Ex. I, Handheld Camera Video CCI-VP-5018 (:40-2:31).

73.   Id. at 2:31-3:40.

74.   Id. at 9:50-10:50.

75.   Id. at 14:43-15:09.

76.   Where the parties present conflicting versions of an incident and video evidence of the incident has been submitted on a motion for summary judgment, the court must view the facts “in the light depicted” by the video of the incident. See Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

77.   IRO at 7.

78.   Compl. at 5, 8.

79.   Id. at 8.

80.   See Defs.’ Ex. I, Handheld Camera Video CCI-VP-23-501 (1:13-10:47).

81.   Compl. at 8.

82.   See Defs.’ Ex. I, Handheld Camera Video CCI-VP-23-501 (15:00-15:07).

83.   Defs.’ Ex. I, Handheld Camera Video CCI-VP-501 (:21-17:39).

84.   See Defs.’ L.R. ¶¶ 41-48; Defs.’ Ex. I, Handheld Camera Video CCI-VP-5018 (:17-1:14).

85.   See id. 00:43-10:50.

86.   Compl. at 4; see IRO at 2, 5-6.

87.   Defs.’ Mem. at 13.

88.   Defs.’ Mem. at 14.

89.   Defs.’ Mem. at 15.

90.   Id. at 15-16.

91.   See ECF 180, Wagner, 3:20-CV-475.

92.   Defs.’ Mem. at 16.

93.   Defs.’ Ex. A, Caballero Decl. at ¶¶ 66, 67; Defs.’ Ex. E, Baran Decl. at ¶ 42; Defs.’ Ex. K, Bryant Decl. at ¶ 14.

94.   Compl. at 4.

95.   Defs.’ Mem. at 17.

96.   Defs.’ L.R. ¶ 4.

98.   IRO at 8-19.

99.   Compl. at 10.

100.   See generally Defs.’ Ex. I, Handheld Camera Video CCI-VP-501 (:43-:56)

101.   Defs.’ Mem. at 22-23. The Eleventh Amendment provides that “state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alterations accepted and internal quotation marks omitted). Sovereign immunity bars suit not only against the state itself but also against state officials when sued in their official capacities. See Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003).

102.   Defs.’ Mem. at 22.

103.   See generally Defs.’ Ex. I, Handheld Camera Video CCI-VP-501.

104.   Defs.’ L.R. ¶¶ 42, 46-48; Defs.’ Ex. I, Handheld Camera Video CCI-VP-501(:46-3:33).

105.   IRO at 10-12.

106.   Compl. at 10.

107.   See Compl. at 5, 8.

108.   Defs.’ Mem. at 25; Defs.’ L.R. ¶¶ 71-75.

VERNON D. OLIVER, United States District Judge: