Ellerbe v. Jasion
| Decision Date | 11 March 2015 |
| Docket Number | No. 3:12-cv-00580 (MPS),3:12-cv-00580 (MPS) |
| Court | U.S. District Court — District of Connecticut |
| Parties | MITCHELL ELLERBE v. OFFICER JASION, ET AL. |
Plaintiff Mitchell Ellerbe is an inmate at MacDougall-Walker Correctional Institution in Suffield, CT. He commenced this civil rights action pro se against employees of the State of Connecticut Department of Correction.
In its February 1, 2013, initial review order, the Court dismissed all claims against Deputy Warden Powers, Captain Butkiewicus, Grievance Coordinator Peterson, and Counselor Supervisor Davis and dismissed the claims against defendants Correctional Officers Jasion and Tye, Correctional Treatment Officer DiCioccio, Disciplinary Hearing Officer Pensavalle, Investigator Krob, Director of Offender Classification Milling, District Administrator Lajoie, and Deputy Commissioner Dzurenda in their official capacities. The Court concluded that the claims of excessive force and denial of due process would proceed. On March 20, 2013, Ellerbe filed an amended complaint asserting the same claims of excessive force and denial of due process against Jasion, Tye, DiCioccio, Pensavalle, Krob, Milling, Lajoie, and Dzurenda.
On April 23, 2013, the defendants moved to dismiss the claims for injunctive and declaratory relief and the claims against Counselor Supervisor Griggs and Krob. On November 20, 2013, the Court granted the motion to dismiss as to the claims under the Equal ProtectionClause of the Fourteenth Amendment, the claims for declaratory and injunctive relief, and all claims against Krob, and denied the motion to dismiss as moot as to Griggs because he was not listed as a defendant in the amended complaint. The Court also dismissed the conspiracy claims against Tye, Jasion, Krob, DiCioccio, and Pensavalle, and the claims that the defendants violated Ellerbe's rights under the Universal Declaration of Human Rights pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
On March 12, 2014, the Court granted Ellerbe's motion to file a second amended complaint. The Court noted that the ruling on the motion to dismiss remained in force as to all defendants other than Griggs. The Court permitted Griggs to file a motion to dismiss on or before April 2, 2014.
Pending before the Court are: (1) a second motion to dismiss filed by the defendants, seeking dismissal of the due process claims in the second amended complaint against Griggs, DiCiccio, Dzurenda, Milling, Lajoie, and Pensavalle; and (2) Ellerbe's motion for appointment of counsel. As detailed herein, the motion to dismiss will be granted in part and denied in part, and the motion for appointment of counsel will be granted.
When considering a motion to dismiss, the Court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). The Court considers not whether the plaintiff ultimately will prevail, but whether he has stated a claim upon which relief may be granted so that he should be entitled to offerevidence to support his claim. See York v. Association of Bar of City of New York, 286 F.3d 122, 125 (2d Cir. 2002). Although detailed allegations are not required, the complaint must include sufficient facts, "accepted as true 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence" supporting plaintiff's claim for relief. Twombly, 550 U.S. at 556. When ruling on a motion to dismiss, the Court may consider the allegations in the complaint, any documents attached to the complaint, and other facts of which judicial notice may be taken. See Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993). "A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008).
The factual allegations are taken from the second amended complaint. On July 15, 2010, at Northern Correctional Institution ("Northern"),1 Jasion and Tye used excessive force against Ellerbe while he was handcuffed in retaliation for Ellerbe's alleged assault of another prison staff member. Jasion issued Ellerbe a ticket for assaulting an officer in connection with Ellerbe's altercation with himself and Tye. Officers escorted Ellerbe to another cell and placed him in restraints, including a tether chain attached at his waist, that were too tight and forced him to hunch over, causing him back and neck pain. At some point—approximately July 18, 2010—Ellerbe was placed in in-cell restraints, including manacles, that caused swelling at his wrists and ankles. He was forced to eat, sleep, and use the toilet in the restraints until they were removed on July 21, 2010.
A disciplinary hearing was scheduled to address the report issued to Ellerbe for assaulting an officer. A day or two after Ellerbe was placed in his in-cell restraints, Krob visited Ellerbe as part of his investigation. Krob prepared a written summary of Ellerbe's verbal statement regarding the incident. A day or so later, Ellerbe's assigned advocate, DiCioccio, visited. DiCioccio took down a summary of his statement but refused to take down his entire statement. Ellerbe requested that DiCioccio obtain written statements from two inmates who had witnessed the incident and that DiCioccio review the videotape of the altercation between himself and Jasion and Tye. When DiCioccio met with Ellerbe again several days later (approximately July 22-23, 2010), she reported that she had obtained the witness statements but had not yet reviewed the videotape.
Ellerbe attended a disciplinary hearing on August 4, 2010. Krob read the written summary of Ellerbe's statement regarding the incident. Ellerbe made Pensavalle aware that there was more to his statement. DiCioccio did not call any witnesses to testify or offer any written witness statements. When Ellerbe questioned this, Pensavalle responded, and refused to hear witness testimony. When Ellerbe questioned whether anyone had reviewed the videotape, Pensavalle responded, Pensavalle found Ellerbe guilty and sanctioned him to thirty days Punitive Segregation (covering a partially retroactive period from July 15, 2010, to August 13, 2010), ninety days loss of commissary, and ninety days loss of telephone privileges.
Ellerbe appealed the decision on August 12, 2010. On September 2, 2010, Ellerbe received Lajoie's denial of the appeal. Lajoie concluded there was no serious process failure and there was sufficient evidence to support the guilty finding.
On September 3, 2010, Ellerbe participated in a hearing to determine whether he should be placed in Administrative Segregation. Ellerbe alleges that defendant Griggs presided over the Administrative Segregation and acknowledged that he had not viewed the videotape of the incident involving the alleged altercation between Jasion and Ellerbe, but indicated he would view the videotape when he got back to Walker Correctional Institution. Ellerbe claims that Griggs never watched the videotape. He also alleges that defendant Griggs did not read his prepared written statement and "excluded" his witnesses without explanation.
A few days after the hearing, Ellerbe received word that defendant Griggs had issued a decision recommending his placement in Administrative Segregation. Milling approved Ellerbe's placement in Administrative Segregation. On October 15, 2010, Ellerbe received Dzurenda's denial of the appeal.
The defendants argue that Ellerbe has failed to state a claim for a due process violation because he lacked a constitutionally protected liberty interest in avoiding confinement in Punitive Segregation and Administrative Segregation and that even if the liberty interest existed, Ellerbe was afforded all the process that is constitutionally required.
As to the September 3, 2010, Administrative Segregation hearing, the Court denies the motion to dismiss the due process counts for failure to state a claim, for the reasons detailedbelow.
The Constitution itself does not give an inmate a liberty interest in avoiding more restrictive confinement such as Punitive Segregation or Administrative Segregation. Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005). But state policies regarding conditions of confinement may create a liberty interest in avoiding more restrictive confinement. Id. Such an interest may arise if "statutes or regulations require, in 'language of an unmistakably mandatory character,' that a prisoner not suffer a particular deprivation absent specified predicates." Tellier v. Fields, 280 F.3d 69, 81 (2d Cir. 2000) (quoting Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir.1999)).
To rise to the level of a constitutionally protected liberty interest, however, a new placement must "impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Wilkinson, 545 U.S. at 223 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). "[T]he duration of [segregated] confinement is a distinct factor bearing on atypicality and must be carefully considered." Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000). A very long period of segregation confinement—longer than 305 days—is sufficiently...
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