Townsend v. Hardy

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TIMOTHY TOWNSEND, JR. v. ANITA
HARDY ET AL.
(AC 38262)
DiPentima, C. J., and Sheldon and Harper, Js.
Argued February 16—officially released June 13, 2017
(Appeal from Superior Court, judicial district of New
Haven, Blue, J.)
Timothy Townsend, Jr., self-represented, the appel-
lant (plaintiff).
Janelle Medeiros, certified legal intern, with whom
were Steven R. Strom, assistant attorney general, and,
on the brief, George Jepsen, attorney general, for the
appellees (defendants).
Opinion
SHELDON, J. The plaintiff, Timothy Townsend, Jr.,
brought this action against two prison officials, the
defendants, Anita Hardy and John Riccio, pursuant to
42 U.S.C. § 1983,1 claiming that they had violated his
constitutional rights while he was confined at the
Cheshire Correctional Institution. The plaintiff claims
that the trial court erred in rendering summary judg-
ment in favor of the defendants on the ground that
none of their alleged misconduct rose to the level of a
constitutional violation. We affirm the judgment of the
trial court.
In his amended complaint dated October 24, 2012,
the plaintiff alleged the following facts, which the defen-
dants did not dispute for purposes of the court’s consid-
eration of their motion for summary judgment. At all
times relevant to the plaintiff’s allegations, he was an
inmate at the Cheshire Correctional Institution, where
Riccio was a correction officer and Hardy was a captain.
The plaintiff claimed that Riccio sexually harassed him
on two occasions. First, on September 25, 2010, Riccio
asked the plaintiff if he wanted ‘‘some sugar,’’ which, the
plaintiff alleged, is slang for a ‘‘kiss.’’ Then, on October 3,
2010, Riccio told the plaintiff, ‘‘I’m checking on you
because I care about you’’ and ‘‘I still genuinely care
about you.’’ On October 6, 2010, the plaintiff filed a
complaint regarding those two alleged instances of sex-
ual harassment with Hardy.
The plaintiff also alleged that Riccio threatened him
when, on October 18, 2010, Riccio told the plaintiff,
‘‘Your life is going to be short lived in this block.’’ That
same day, the plaintiff filed a complaint with Hardy
and other prison officials, alleging that he had been
threatened by Riccio, and that he feared for his physical
safety. The plaintiff alleged that Riccio had threatened
him in retaliation for his filing of a complaint about the
aforementioned sexual harassment.
On October 20, 2010, the plaintiff was moved to a
restrictive housing unit while Hardy investigated his
complaints that Riccio had sexually harassed and
threatened him. While in the restrictive housing unit, the
plaintiff reported Riccio’s conduct to the Connecticut
State Police. On November 2, 2010, Hardy explained to
the plaintiff that his complaints against Riccio could
not be substantiated, and thus the plaintiff was trans-
ferred out of the restrictive housing unit. On November
4, 2010, the plaintiff was interviewed by the Connecticut
State Police regarding his allegations of sexual harass-
ment and threatening by Riccio.
On November 5, 2010, Hardy told the plaintiff to ‘‘sign
this statement stating you no longer fear for your
safety.’’ The plaintiff refused to do so, and thus was
transferred back to the restrictive housing unit, where
he remained for three days, until November 8, 2010,
when he was released back into the general population
with no explanation. The plaintiff alleged that Hardy
had transferred him to the restrictive housing unit in
retaliation for contacting the Connecticut State Police
regarding his claims against Riccio.
On the basis of the foregoing, the plaintiff claimed
that Riccio and Hardy violated his constitutional rights
and, pursuant to 42 U.S.C. § 1983, sought compensatory
damages from both of them in their individual capa-
cities.
On March 3, 2015, the defendants moved for summary
judgment on all of the plaintiff’s claims. They argued
that, even if the plaintiff’s factual allegations against
Riccio were true, they were not serious enough to rise
to the level of constitutional violations. As for the plain-
tiff’s allegations against Hardy, the defendants argued
that they too were de minimis. The defendants also
argued that Hardy had no personal involvement in the
decision to send the plaintiff to the restrictive hous-
ing unit.
On July 1, 2015, the court agreed with the defendants,
over the plaintiff’s objection, and issued a memorandum
of decision rendering summary judgment in their favor.
The plaintiff thereafter asked the court to articulate its
ruling on the ground that it had failed to address his
claimed constitutional violations. On October 6, 2015,
the court filed an articulation explaining, inter alia: ‘‘The
court’s July 1, 2015 . . . decision implicitly addresse[d]
these claims by following the precedent of the United
States Court of Appeals for the Second Circuit holding
that claims like the ones presented by the [plaintiff]
do not constitute cognizable claims of constitutional
violation. To be explicit, however, none of the alleged
actions in this case violate the [plaintiff’s] rights under
any of the constitutional amendments claimed.’’ This
appeal followed.
Our standard of review in an appeal from the granting
of a motion for summary judgment is plenary. ‘‘Sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and 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 scope of our appellate review depends
upon the proper characterization of the rulings made
by the trial court. . . . When . . . the trial court draws
conclusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Desrosiers
v. Diageo North America, Inc., 314 Conn. 773, 781, 105
A.3d 103 (2014).
The plaintiff first claims that the trial court erred in
determining that his claim of sexual harassment against
Riccio did not rise to the level of a constitutional viola-
tion. ‘‘[S]exual abuse by a corrections officer can give
rise to an Eighth Amendment claim.’’ Crawford v.
Cuomo, 796 F.3d 252, 257 (2d Cir. 2015). ‘‘The Eighth
Amendment protects prisoners from cruel and unusual
punishment by prison officials. . . . To state an Eighth
Amendment claim, a prisoner must allege two elements,
one subjective and one objective. First, the prisoner
must allege that the defendant acted with a subjectively
sufficiently culpable state of mind. . . . Second, he
must allege that the conduct was objectively harmful
enough or sufficiently serious to reach constitutional
dimensions. . . . Analysis of the objective prong is
context specific . . . and depends upon the claim at
issue. . . . Although not every malevolent touch by a
prison guard gives rise to a federal cause of action,
the Eighth Amendment is offended by conduct that is
repugnant to the conscience of mankind. . . . Actions
are repugnant to the conscience of mankind if they are
incompatible with evolving standards of decency or
involve the unnecessary and wanton infliction of pain.’’
(Citations omitted; internal quotation marks omitted.)
Id., 256.
Here, the plaintiff’s claim of sexual harassment
against Riccio is based upon Riccio’s statement asking
him if he ‘‘wanted some sugar’’ and telling him that he
cared about him. Even ascribing to those statements
the sexual motivation alleged by the plaintiff, we cannot
conclude that they were repugnant to the conscience
of mankind. We agree with the trial court’s determina-
tion that they were not sufficiently serious to reach
constitutional dimensions and thus that the court did
not err in rendering judgment as a matter of law in
favor of Riccio on the claim that was based upon
those statements.
The plaintiff also claims that the court erred in render-
ing summary judgment in favor of the defendants on
his claims relating to the allegedly retaliatory conduct
of Riccio and Hardy after he filed his complaint for
sexual harassment against Riccio. We are not per-
suaded.
‘‘Although prison officials may not retaliate against
prisoners for exercising their constitutional rights . . .
claims of retaliation must be examined with skepticism
and care because they are prone to abuse because pris-
oners can claim retaliation for every decision they dis-
like. . . . Because retaliation claims can be fabricated
easily, plaintiffs bear a somewhat heightened burden
of proof, and summary judgment [for a defendant] can
be granted if the claim appears insubstantial.’’ (Cita-
tions omitted; internal quotation marks omitted.) Aziz
Zarif Shabazz v. Pico, 994 F. Supp. 460, 467 (S.D.N.Y.
1998), vacated in part on other grounds, Docket No.
99-0223, 2000 U.S. App. LEXIS 3404 (2d Cir. February
24, 2000) (decision without published opinion, 205 F.3d
1324 [2d Cir. 2000]).
A first amendment retaliation claim under § 1983
requires that a prisoner establish three elements: ‘‘(1)
that the speech or conduct at issue was protected, (2)
that the defendant took adverse action against the plain-
tiff, and (3) that there was a causal connection between
the protected speech and the adverse action.’’ (Internal
quotation marks omitted.) Gill v. Pidlypchak, 389 F.3d
379, 380 (2d Cir. 2004). ‘‘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 a claim of retaliation.
. . . Otherwise the retaliatory act is simply de minimis
and therefore outside the ambit of constitutional protec-
tion. . . . In making this determination, the court’s
inquiry must be tailored to the different circumstances
in which retaliation claims arise, bearing in mind that
[p]risoners may be required to tolerate more . . . than
average citizens, before a [retaliatory] action taken
against them is considered adverse.’’ (Citations omitted;
internal quotation marks omitted.) Davis v. Goord, 320
F.3d 346, 353 (2d Cir. 2003), superseded in part by Davis
v. Goord, Docket No. 01-0116, 2003 U.S. App. LEXIS
13030 (2d Cir. February 10, 2003).
The plaintiff claims that Riccio and Hardy retaliated
against him for filing a claim against Riccio for sexual
harassment and for reporting Riccio to the state police.
First, the plaintiff claims that Riccio retaliated against
him for filing a sexual harassment claim by threatening,
‘‘[y]our life is going to be short lived in this block.’’
Even construed as a threat to the plaintiff’s physical
safety,2 it is not likely that that statement, in isolation,
would have deterred a similarly situated inmate of ordi-
nary resolve from exercising his constitutional rights.
While Hardy investigated his claims against Riccio,
the plaintiff was placed in restrictive housing for his
safety. After he spent approximately two weeks in
restrictive housing, Hardy told him that his claims
against Riccio could not be substantiated and he was
thus released from restrictive housing. Three days later,
Hardy asked the plaintiff to sign a document stating
that he no longer feared for his safety, or else he would
be remanded to restrictive housing. When he refused
to do so, he was placed back into restrictive housing for
three days, allegedly in retaliation for reporting Riccio’s
conduct to the state police.
The plaintiff’s claims against Hardy fail, as a matter
of law, for two reasons. First, the record reflects that
it was the deputy warden of the prison, not Hardy, who
ordered that the plaintiff be remanded to restrictive
housing when he refused to sign the document stating
that he no longer feared for his safety. Second, the
record reflects that it is routine protocol for an inmate
to be placed in restrictive housing after the inmate files
a complaint against a prison official and expresses fear
for his safety. It cannot reasonably be argued that place-
ment in restrictive housing for three days, out of the
reach of the individual he allegedly fears, would deter
a similarly situated inmate from exercising his constitu-
tional rights.
Because the plaintiff’s claims were de minimis, the
trial court properly concluded that they did not rise to
the level of constitutional violations and, thus, properly
rendered summary judgment in favor of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Title 42 of the United States Code, § 1983, provides: ‘‘Every person who,
under color 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 jurisdic-
tion 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. For
the purposes of this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a statute of the District
of Columbia.’’
2
Riccio filed an affidavit indicating that his statement was not meant as
a threat, but, rather, as a comment ‘‘that if [the plaintiff] continued to
misbehave, he would be transferred out of the unit.’’