PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO …



DOCKET NO.: CV 02 0821661 ) SUPERIOR COURT

)

ELAINE WISEMAN, ADMINISTRATOR )

OF THE ESTATE OF BRYANT ) JUDICIAL DISTRICT OF

WISEMAN, )

) HARTFORD AT HARTFORD

vs. )

)

JOHN J. ARMSTRONG, ET AL. ) JANUARY 17, 2003

PLAINTIFF’S MEMORANDUM OF LAW IN

OPPOSITION TO DEFENDANTS’ AMENDED MOTION TO DISMISS

LEGAL STANDARD

“It is well-established that in ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Ganim v. Smith & Wesson Corp., 258 Conn. 313, 326 (2001).

ORAL ARGUMENT REQUESTED

TESTIMONY NOT REQUIRED

FACTS

The Complaint alleges:

On November 17, 1999, 28-year old Bryant Wiseman died while incarcerated at the Garner Correctional Institution. Bryant was mentally ill, and at the time of his death he had been diagnosed as suffering from paranoid schizophrenia. Notwithstanding Bryant’s mental illness and notwithstanding his doctors’ knowledge that Bryant required adequate and proper anti-psychotic medication in order to control his schizophrenia, to enable him to function properly and to prevent his becoming paranoid, aggressive and disruptive, the Department of Correction’s doctors, nurses and other medical workers failed and refused to provide adequate and proper medical care, supervision and medication to him, they allowed his mental illness to go untreated and inadequately treated, and they permitted him to decompensate and to become paranoid and aggressive under circumstances that they knew would lead to violent confrontations with other inmates and correctional staff.

On November 17, 1999, after several days during which his doctors intentionally withheld required anti-psychotic medication, Bryant’s untreated mental illness caused him to become paranoid and disruptive, and as could and should have been expected, he was subsequently violently subdued and restrained by more than eight correctional officers and other Department staff. At approximately 12:45 p.m., in Cell 520 on the Inpatient Medical Unit of the Garner Correctional Institution, more than eight correctional officers and other custodial staff: forced Bryant into a face-down “hog tie” position with his feet up on the bed, his torso down on the floor, and his hands shackled behind his back; placed his legs in leg irons; used extreme and excessive force against him; compromised his respiratory system and asphyxiated him; rendered him unconscious and comatose; and ultimately killed him. After placing Bryant in hand cuffs and leg irons, the defendants continued for several minutes to hold him in the face-down hog tie position, with his feet up on the bed and his face pressed against the floor and with the weight of several correctional officers on him, while they waited for cutting shears to cut his clothes from his body so that they could perform a strip search. At this point, Bryant began to vomit, and the defendants realized that he was unconscious and comatose and had stopped breathing. Following the officer’s restraint, after Bryant had been rendered unconscious and comatose, and after he had vomited and stopped breathing, the officers finally called medical staff for assistance. Bryant’s injuries and death were due to a profound lack of training in how to properly manage and restrain mentally ill inmates.

The guards’ untrained take-down and restraint of Bryant Wiseman and his death at their hands unfortunately is not an isolated incident at the Department of Correction. Seven months before Bryant was killed, another young mentally ill man, Timothy Perry, was killed by two lieutenants and a number of guards under similar circumstances while in custody at a facility of the Department of Correction. As with Bryant Wiseman, Timothy Perry’s schizophrenia caused him to become paranoid and aggressive, and he was killed by guards while being subdued and restrained in a mental health cell. As with Bryant Wiseman, the lieutenants and guards responsible for Timothy Perry’s death held him face down on a mattress in a mental health cell, shackled him with leg irons, used excessive force against him, and, like Bryant Wiseman, asphyxiated him. The take-down and restraint procedures utilized, and the use of force perpetrated, by these lieutenants and guards were essentially identical to the take-down and restraint procedures and the use of force utilized and perpetrated by the guards who killed Bryant Wiseman seven months later.

Following the death of Timothy Perry, not one of the persons responsible for his death was appropriately punished or disciplined. Four months later, defendant Correctional Nurse Storey was actually offered a promotion. Following Timothy Perry’s death, his estate sued defendant Commissioner Armstrong, the Department of Correction, the guards and others responsible for his death. The defendants agreed to settle that lawsuit by paying to Mr. Perry’s estate $2.9 million. Notwithstanding the settlement of the case, and notwithstanding all of the evidence showing that the lieutenants and guards were responsible for killing Timothy Perry, nearly all of those persons continue to be employed by the Department of Correction and continue to hold positions of substantial authority in the Department.

Following Timothy Perry’s death, throughout the course of (a) an internal investigation conducted by the Department, (b) an investigation conducted by the Connecticut State Police, and (c) the subsequent lawsuit brought by Mr. Perry’s estate, not one of the lieutenants or guards or the nurse told the truth about how Mr. Perry was killed; rather, they hid the truth and deliberately lied in order to avoid blame and punishment for his death. Nor did these defendants tell the truth or notify Department officials about their profound lack of skill, experience, training and supervision in the handling of mentally ill and aggressive inmates and in the use of force against, and the restraint of, such inmates. Nor did any of these defendants tell the truth or notify Department officials about the urgent need for Department-wide training for all custodial staff in the proper handling of mentally ill and aggressive inmates and in the use of force against such inmates.

Similarly, at no point following Mr. Perry’s death did defendant Commissioner Armstrong or defendant Deputy Commissioner Tokarz institute meaningful, adequate and effective Department-wide training for custodial staff in the proper handling of mentally ill and aggressive inmates and in the use of force against such inmates, even though, following Mr. Perry’s death, it was known to them, and should have been known to them, that such training was urgently required. Following Timothy Perry’s death, neither the Commissioner nor Deputy Commissioner conducted, or caused to be conducted, an adequate investigation and review of Timothy’s death or of Department procedures to ensure that proper training was provided and to avoid further injury and death to mentally ill inmates such as Bryant Wiseman. As a result of the above failings, no adequate training was conducted, no precautionary procedures were instituted, no required monitoring and supervision of correctional staff was contemplated, and, as could and should have been expected and prevented by these defendants, Bryant Wiseman was killed in a nightmarish reenactment of Timothy Perry’s death only a few months earlier.

The Complaint alleges specifically that the above acts and omissions of the lieutenants, guards and Nurse Storey, and of defendants Armstrong and Tokarz, directly and proximately caused the death of Bryant Wiseman. Complaint ¶ 94.

The Complaint seeks redress from the persons and entities responsible for Bryant Wiseman’s anguish, injuries and death including, as relevant to the defendants’ current motion: (a) Commissioner John Armstrong and Deputy Commissioner Jack Tokarz, who were responsible for the hiring, supervision, training, discipline and control of persons working for the Department; (b) the entities, doctors and other medical workers responsible for diagnosing, observing and treating Bryant Wiseman; and (c) the lieutenants, correctional officers and correctional nurse who were responsible for Timothy Perry’s death, who covered up a profound and urgent need for Department-wide training in the restraint of mentally ill inmates, and whose cover-up, silence and lies are alleged to have directly and proximately caused the death of Bryant Wiseman.

Within each of the Counts that the defendants currently move to dismiss, the Complaint alleges additional facts. Specifically:

In Count Four, alleging deliberate indifference to safety/failure to protect against the lieutenants, correctional officers and nurse responsible for Timothy Perry’s death, the complaint alleges that, at no point after Timothy Perry’s death on April 12, 1999, and up until Bryant Wiseman’s death seven months later, did any of these defendants tell the full truth about how Timothy Perry was killed. In fact, in multiple sworn statements made by these defendants following Mr. Perry’s death, they lied to investigators about their acts, omissions and responsibility, about their failure to properly restrain Mr. Perry, about their failure to summon urgently needed medical care for him and about other relevant facts. By their intentional failure and refusal to honestly report the facts concerning their responsibility for Mr. Perry’s death, these defendants hid information from Department officials and profoundly hindered and interfered with those officials’ ability to prevent similar injuries and deaths in the future, including the death of Bryant Wiseman. The Complaint further alleges that each of these defendants knew: (a) that other correctional officers and medical workers in the Department of Correction had been improperly and inadequately trained to safely and properly restrain inmates, especially mentally ill inmates; (b) that other mentally ill inmates, such as Bryant Wiseman, were in the custody of the Department; (c) that correctional employees are frequently called upon to deal with and restrain mentally ill inmates in situations that require safe and proper techniques and that pose a risk of harm to the inmates; and (d) that the lack of training would inevitably lead to the injury and death of other mentally ill inmates such as Bryant Wiseman.

In Count Five, alleging a supervisory liability claim against defendants Armstrong and Tokarz for deliberate indifference to safety/failure to protect, the Complaint alleges that, following Timothy Perry’s death, and at other times before Bryant Wiseman was killed, these defendants were on actual and constructive notice that inmates, especially mentally ill inmates such as Bryant Wiseman, were at a profound risk of harm and death at the hands of correctional employees who were inadequately and improperly trained to manage, supervise and restrain such inmates. And the Complaint alleges that defendants Armstrong and Tokarz were personally involved in and responsible for the failure to protect Bryant Wiseman in that: (a) They created a policy and custom, and they allowed the continuance of a policy and custom, under which correctional officers and other persons employed at the Department are allowed, permitted and/or encouraged to look the other way and to remain silent when excessive force is used against inmates in the correctional system; (b) they created a policy and custom, and they allowed the continuance of a policy and custom, under which correctional officers and other persons employed at the Department are allowed, permitted and/or encouraged to look the other way and to remain silent when it becomes clear that employees have been inadequately or improperly trained to deal with mentally ill and other inmates and when the lack of training increases the risk of harm to inmates in the correctional system; and (c) they were deliberately indifferent in supervising and training subordinates who committed the wrongful acts described in the Complaint. The defendants’ acts and omissions proximately caused Bryant Wiseman’s suffering, injuries and death.

In the Ninth, Tenth and Eleventh Counts, alleging violations of the Connecticut Patients Bill of Rights against the persons and entities responsible for diagnosing, treating and observing Bryant Wiseman, the Complaint alleges that Bryant Wiseman was a “Patient” within the meaning of the Act, that the facilities of the Department of Correction, including Garner Correctional Institution (where Bryant died), are “Facilities” within the meaning of the Act, and that the defendants intentionally failed to provide humane and dignified treatment to him, intentionally failed to treat and monitor him in accordance with a specialized treatment plan suited to his disorders, and intentionally failed to conduct, or to ensure Bryant’s receipt of, proper psychiatric examinations, all of which directly and proximately caused Bryant Wiseman’s mental illness to be improperly and inadequately treated, and all of which caused him to suffer extreme fear, agitation, and death. The Complaint specifically alleges that the named doctors and medical workers “each acted with reckless or callous indifference to Bryant Wiseman’s dignity as a human being and to his constitutional and statutory rights.” Complaint ¶ 95.

For purposes of this motion, all of the above facts must be taken as true.

ARGUMENT

A. The Fourth Count of the Complaint Properly Alleges that the Acts and Omissions of the Perry Correctional Employee Defendants Directly and Proximately Caused the Death of Bryant Wiseman.

In moving to dismiss the Fourth Count, the defendants mischaracterize the Complaint, attack claims that are not actually made, and ignore decades of governing case law concerning the personal responsibility of State actor defendants in prisoner civil rights litigation.

First, the defendants mischaracterize the substance of the Fourth Count by arguing that it concerns merely their failure to “tell the full truth about how Timothy Perry was killed.” Defendants’ Memorandum (Defs’ Mem.) at 8. They then argue that Plaintiff has no standing to assert such a claim because only Timothy Perry’s rights were violated by the defendants’ failure to tell the truth, and “[o]ne does not have standing to assert a violation of rights belonging to another.” Defs’ Mem. at 7.

This clever attack on the Complaint might have some merit if the Fourth Count were limited merely to the allegation that these defendants lied about how Mr. Perry was killed. However, the Fourth Count alleges much more than that. In fact, it asserts:

4. By their intentional failure and refusal to honestly report the facts concerning their responsibility for Mr. Perry’s death, the PERRY CORRECTIONAL EMPLOYEE DEFENDANTS hid information from DEPARTMENT OF CORRECTIONS officials and profoundly hindered and interfered with those officials’ ability to prevent similar injuries and deaths in the future, including the death of Bryant Wiseman.

5. For example, the PERRY CORRECTIONAL EMPLOYEE DEFENDANTS intentionally failed and refused to put DEPARTMENT officials on notice of serious deficiencies in the DEPARTMENTS’ training of correctional officers to deal with mentally ill inmates and to safely restrain inmates.

6. Each of the PERRY CORRECTIONAL EMPLOYEE DEFENDANTS knew: (a) that other correctional officers and medical workers in the DEPARTMENT OF CORRECTION had been improperly and inadequately trained to safely and properly restrain inmates, especially mentally ill inmates; (b) that other mentally ill inmates, such as Bryant Wiseman, were in the custody of the DEPARTMENT; (c) that correctional employees are frequently called upon to deal with and restrain mentally ill inmates in situations that require safe and proper techniques and that pose a risk of harm to the inmates; and (d) that the lack of training would inevitably lead to the injury and death of other inmates and mentally ill inmates such as Bryant Wiseman.

7. The defendants’ failure and refusal to tell the truth about their responsibility for Mr. Perry’s death, and to otherwise put DEPARTMENT officials on notice of the urgent need to provide proper and adequate training to correctional employees concerning how to safely restrain inmates and how to otherwise safely and properly deal with mentally ill inmates, proximately caused Bryant Wiseman’s injuries and death and violated his Fourth, Eighth and Fourteenth Amendments rights under the United States Constitution.

Complaint, Fourth Count.

Thus, while the defendants are correct that “the plaintiff ‘must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct,’” (Defs’ Mem. at 7, quoting Allen v. Wright, 468 U.S. 737, 751 (1984)), the Fourth Count more than adequately satisfies that requirement. Plaintiff does not merely allege that these defendants lied; she alleges that the defendants knew there existed a severe and imminent risk of harm and death to all mentally ill inmates in the custody of the Department of Correction, and that their lies and cover-up directly caused Bryant Wiseman’s death. The plaintiff has thus made “a colorable claim of direct injury,” Connecticut Associated Builders & Contrs. v. City of Hartford, 251 Conn. 169, 178 (1999), she has a “personal stake in the outcome of the controversy,” Maloney v. Pac, 183 Conn. 313, 320 (1981), and she clearly is the “proper party to request adjudication of the issues.” Community Collaborative v. Ganim, 241 Conn. 546, 553 (1997).

Not much more compelling is the defendants’ next argument in support of dismissing the Fourth Count, that plaintiff “has set forth no allegations that even suggest the Perry defendants [were] in a position to intervene and protect [Bryant Wiseman.]” Defs’ Mem. at 15. Again, a simple reading of the Complaint refutes the defendants’ claim. The Fourth Count specifically alleges that each of these defendants possessed specific information confirming the existence of a severe and imminent risk of harm to an identifiable class of mentally ill inmates, including Bryant Wiseman, but that in multiple sworn statements during the course of several official investigations they intentionally failed and refused to truthfully report this information to officials in a position to avert the harm. Fourth Count, ¶¶ 4-7.[1] The defendants’ rhetoric notwithstanding, these allegations obviously suggest that the defendants were “in a position to intervene and protect” Bryant Wiseman. Defs’ Mem. at 15.

Moreover, the allegations in the complaint concerning the defendants’ opportunity and obligation to tell the truth and to notify officials of the imminent risk of harm to Bryant Wiseman are fully consistent with the Department’s own Administrative Directives in effect at the time that Timothy Perry and Bryant Wiseman died (and in effect today).[2] For example, Administrative Directives 2.17(5)(A)(18) and (B)(27), concerning Employee Conduct, provided that each of the defendants “shall ... cooperate fully and truthfully in any inquiry or investigation conducted by the Department of Correction and any other law enforcement or regulatory agency,” and the Directive strictly prohibited “[l]ying or giving false testimony during the course of a departmental investigation.” The Directive further provided that:

[E]ach Department employee shall report to a supervisor or appropriate personnel any policy violation or breach of professional conduct involving ... inmates under the jurisdiction of the Department of Correction.

Admin. Dir. 2.17(7). Administrative Directive 1.10(4)(B), concerning Investigations, similarly required the defendants to “fully cooperate with any External Investigation, Criminal Investigation or Administrative Investigation.” And Administrative Directive 6.6(1), concerning Reporting of Incidents, compelled the defendants to report all serious incidents and emergencies, defined specifically to include the death of an inmate, “in a complete, accurate and timely manner.”

Accordingly, the defendants’ assertion that they were not “in a position to intervene and protect” Bryant Wiseman (Defs’ Mem. at 15), is not only inconsistent with the facts as pleaded in the Complaint, but is also utterly refuted by the Department’s own mandatory operating procedures, which required them to report the risk of harm.

Finally, the defendants argue that, because the complaint does not allege that they were “near or with Bryant Wiseman” on the day he died, or that they had “contact” with him, the Fourth Count must be dismissed because the plaintiff cannot establish that the defendants “were personally involved in the alleged violation of Mr. Wiseman’s constitutional rights.” Defs’ Mem. at 14-15. The defendants thus propose an unusually strict “physical proximity” or “physical contact” requirement that finds no support in either the text of Section 1983 or the many decades of case law interpreting the statute, and that would grant correctional officers and other State actors virtually limitless immunity in a large class of cases seeking to remedy constitutional rights violations.[3]

While the defendants might be correct that ”physical proximity” or “physical contact” is a required element of a claim for excessive use of force, the Fourth Count sues this group of defendants for deliberate indifference to Bryant Wiseman’s safety and their failure to protect him. Application of the defendants’ suggested rule in this context makes little logical sense and would have profoundly negative consequences for prisoners and others whose physical safety, constitutional rights and general well-being are at the mercy of State actors who are not necessarily in the room when the actual physical assault or other deprivation takes place. In fact, the defendants have already made – and lost – the exact argument that they press here. In Hicks v. Armstrong, 116 F. Supp. 2d 287 (D. Conn. 1999), Commissioner Armstrong argued that the plaintiff’s deliberate indifference claims should be dismissed because the defendants were not “present at the time [plaintiff] suffered from any of the medical conditions [or] that they observed him to be suffering.” Id. at 294. The District Court rejected that argument, holding: “The law ... does not require that a defendant observe or be present at the time of a plaintiff’s suffering.”

In addressing the defendants’ motion, it is also necessary to understand that two of the defendants sued in the Fourth Count -- Andre Chouinard and William Scott -- were lieutenants at the time of the assault on Timothy Perry and during the time that they failed to truthfully report the severe and imminent risk of harm to Bryant Wiseman. See Complaint ¶¶ 23, 78, 79. The analysis applicable to these supervisory employees is well-established:

The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3. 865, 873 (2nd Cir. 1995) (emphasis added).[4]

Here, the Complaint specifically alleges that defendants Scott and Chouinard: (a) failed to remedy the profound lack of training and the severe and imminent risk of harm to mentally ill prisoners such as Bryant Wiseman after being informed of it; (b) allowed the continuance of a policy and custom of improper restraints and the use of excessive force against mentally ill prisoners; and (c) exhibited deliberate indifference to Bryant Wiseman’s rights by failing to act on information indicating that unconstitutional acts were occurring in the Department of Correction.

As the defendants have already been instructed by the Federal District Court in Hicks v. Armstrong, they are properly accountable for Bryant Wiseman’s death even if they were not “near or with Bryant Wiseman” on the day he died, and even if they had no “contact” with him. Defs’ Mem. at 14. The personal involvement of these supervisory defendants has been more than adequately alleged.

The application of a “physical proximity” or “physical contact” test to the non-supervisory defendants sued in the Fourth Count would be similarly misplaced. It is well-established that a correctional officer can be properly sued for deliberate indifference if he:

knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer v. Brennan, 511 U.S. 825, 838 (1994). “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842.[5]

The Farmer standard poses a significant burden of pleading and proof; but it does not require that the defendants be physically present at the time and place that the plaintiff suffers the ultimate constitutional violation. And, most importantly, it does not require that the defendants have personal knowledge of the identity of either the specific victim or the persons who perpetrate the actual attack or other constitutional deprivation:

The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to his future health,” and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.

Farmer v. Brennan, 511 U.S. at 829 (emphasis added, citation omitted). “[I]t would obviously be irrelevant to liability that the officials could not guess beforehand precisely who would attack whom.” Id. (emphasis added). In other words, the requisite knowledge may be of a general nature and need not concern the specific risk or violation experienced by the specific plaintiff. See Taylor v. Michigan Dept. of Corrections, 69 F.3d 76, 81 (6th Cir. 1995) (“Farmer makes it clear that the correct inquiry is whether he had knowledge about the substantial risk of serious harm to a particular class of persons, not whether he knew who the particular victim turned out to be.”); Sanchez v. State of New York, 2002 N.Y. LEXIS 3578 *11 (N.Y. Ct. of Appeals 2002) (On a negligent supervision claim, the State owed inmate a duty of care for risks of which “the State reasonably should have known – for example from its knowledge of risks to a class of inmates based on the institution’s expertise or prior experience, or from its own policies and practices designed to address such risks.”).

Here, the complaint alleges that the Perry Defendants knew of a severe and imminent risk of harm to a particularly vulnerable and specifically identifiable class of inmates – those with psychiatric disabilities – but that they deliberately failed to act on, and intentionally lied and covered up, the information, knowing that harm to one or more members of that class would result. These allegations are more than adequate to show the “personal involvement of [the defendants] sufficient to support their liability” for the violation of Bryant Wiseman’s constitutional rights. Ayers v. Coughlin, 780 F.2d 205, 210 (2nd Cir. 1985). The plaintiff has clearly alleged “a tangible connection between the acts of the defendants and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2nd Cir. 1986). The defendants’ motion to dismiss the Fourth Count must be denied.

B. The Fifth Count Properly Alleges that Defendants Commissioner Armstrong and Deputy Commissioner Tokarz Are Liable in their Supervisory Capacities for Deliberate Indifference to Bryant Wiseman’s Safety and for their Failure to Protect Him.

In moving to dismiss the Fifth Count, the defendants again mischaracterize the Complaint, attack claims that are not actually made, and ignore decades of governing case law concerning the supervisory liability of State actor defendants in prisoner civil rights litigation.

First, in a repeat of their approach to the dismissal of the Fourth Count, the defendants mischaracterize the substance of the Fifth Count by arguing that it merely sues “Armstrong and Tokarz because the Perry defendants were not disciplined.” Defs’ Mem. at 9. The defendants then set forth five pages of argument and citations supporting the irrelevant and undisputed notion that “a private citizen has ‘no judicially cognizable interest in the prosecution or nonprosecution of another.’” Id. By thus setting up and knocking down this straw man, the defendants apparently hope to prevent the Court from focusing on the actual substance of the Fifth Count. In fact, the Fifth Count alleges:

2. Following Timothy Perry’s death, and at other times before Bryant Wiseman was killed, defendants ARMSTRONG and TOKARZ were on actual and constructive notice that inmates, especially mentally ill inmates such as Bryant Wiseman, were at a profound risk of harm and death at the hands of correctional employees who were inadequately and improperly trained to manage, supervise and restrain such inmates.

3. Defendants ARMSTRONG and TOKARZ were personally involved in and responsible for the failure to protect Bryant Wiseman in that:

a. They created a policy and custom, and they allowed the continuance of a policy and custom, under which correctional officers and other persons employed at the DEPARTMENT OF CORRECTION are allowed, permitted and/or encouraged to look the other way and to remain silent when excessive force is used against inmates in the correctional system;

b. They created a policy and custom, and they allowed the continuance of a policy and custom, under which correctional officers and other persons employed at the DEPARTMENT OF CORRECTION are allowed, permitted and/or encouraged to look the other way and to remain silent when it becomes clear that employees have been inadequately or improperly trained to deal with mentally ill and other inmates and when the lack of training increases the risk of harm to inmates in the correctional system; and

c. They were deliberately indifferent in supervising and training subordinates who committed the wrongful acts described herein.

4. The acts and omissions of the defendants proximately caused Bryant Wiseman’s suffering, injuries and death.

Complaint, Fifth Count.

Thus, as a simple reading of the Count reveals, the plaintiff is suing these defendants for their deliberate indifference to Bryant Wiseman’s safety and for their failure to protect him. The defendants attack this Count on the grounds that, even though the actual language of the complaint does not say so, the entire Count, in their view, alleges no more than a single allegation set forth at an earlier paragraph of the Complaint. In the defendants’ view, the entire Fifth Count is “seemingly based upon plaintiff’s allegation that not one of the Perry defendants were appropriately punished or disciplined. Complaint par. 87.” Defs’ Mem. at 11-12 (emphasis added). However, that is not what the Count actually alleges. The fact that the defendants failed to discipline those persons responsible for Timothy Perry’s death provides evidence of the defendants’ deliberate indifference; but that fact is not the sum and substance of the entire Count.

Most importantly, the Count does not seek to impose retroactive investigation, discipline or prosecution upon the Perry Defendants. The defendants simply misunderstand the Complaint when they rely upon cases such as Marsh v. Kirschner, 31 F. Supp. 2d 79 (D. Conn. 1998). Defs’ Mem. At 11. In Marsh, the plaintiff sought declaratory and injunctive relief requiring defendant police officials “to reopen their investigation of [an assault] incident and arrest” the alleged assaulter. Id. at 80. Those claims have nothing to do with the Complaint in this case. The Fifth Count seeks to hold the defendants accountable for their deliberate failure to protect Bryant Wiseman from a severe and imminent risk of harm. The fact that the defendants failed to meaningfully investigate, discipline or punish other correctional officers following their assault on another defenseless mentally ill man is evidence of the Defendants’ indifference and proof of their culpability; but is does not define the claim.

As discussed above with reference to Lieutenant Chouinard’s and Lieutenant Scott’s liability on the Fourth Count, the legal principles applicable to Commissioner Armstrong’s and Deputy Commissioner Tokarz’s supervisory liability are well-established. See Colon v. Coughlin, 58 F.3. at 873 (“The personal involvement of a supervisory defendant may be shown by evidence that ... (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, [or] (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts ...”). These are the precise allegations in the Complaint. The defendants’ motion to dismiss the Fifth Count must be denied.

C. Garner Correctional Institution Is A “Facility” Within the Meaning of the Patients’ Bill of Rights.

The defendants move to dismiss the Ninth, Tenth and Eleventh Counts of the Complaint on the grounds that “correctional facilities are not facilities for purposes of the Patients Bill of Rights statutes.” Defs’ Mem. at 16. In making this argument, the defendants: (a) ignore plain statutory language; (b) ignore well-established rules of statutory construction; (c) ignore contrary case law; (d) ignore the Department of Corrections’ own Administrative Directives to the contrary; (e) ignore decades of case law holding that prison officials are not exempt from statutory or constitutional mandates simply because those mandates need to be tailored to the prison environment; and (f) ignore the profound negative consequences that would result if the Department of Correction were exempted from the requirements of the Patients Bill of Rights.

First, the Connecticut General Assembly commanded that “’Facility’ means any inpatient or outpatient hospital, clinic or other facility for the diagnosis, observation or treatment of persons with psychiatric disabilities.” Conn. Gen. Stat. § 17a-540(a) (emphasis added). This language is plain. The Legislature knows how to create exceptions. Nothing in the actual words of the statute indicates that the Legislature excepted Garner Correctional Institution or any other facility of the Department of Correction from the definition of “Facility.” According to a plain reading of the statutory language, if a facility provides for the “diagnosis, observation or treatment of persons with psychiatric disabilities” (and Garner Correctional Institution indisputably does), then it is covered by the Act.

The defendants apparently place great weight on the fact that the Act does not explicitly mention prisons and prisoners. That argument itself is questionable, since the Act fails to identify any covered mental health facility, relying instead on what the facility does -- i.e., that it diagnoses, observes and treats -- rather than on what the facility is called or where it is located. But even if the Act’s failure to specifically mention prisons can be taken as proof that that the Legislature did not envision that the Act would protect psychiatric patients at correctional facilities, “in the context of an unambiguous statutory text that is irrelevant.” Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 212 (1998). Faced with an argument identical to that made by the defendants here, the United States Supreme Court held in Yeskey that the Americans with Disabilities Act applies to inmates in state prisons notwithstanding the lack of statutory language making that application plain. “As we have said before, the fact that a statute can be ‘applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.’” Id., 524 U.S. at 212.

Second, “[i]t is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation.... When the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 73-74 (1997). See also The Mad River Co. v. Town of Wolcott, 137 Conn. 680, 686-87 (1951) (“Legislative intent ... is to be found not in what the legislature meant to say but in the meaning of what it did say.”). The defendants quote page after page of ambiguous legislative history. They wish that the text of the Patients’ Bill of Rights defined “Facility” to mean “any other facility for the diagnosis, observation or treatment of persons with psychiatric disabilities except for facilities of the Department of Correction.” But the Act doesn’t say that. The actual language is broad and all-inclusive, and if the defendants want to seek relief from that very clear legislative mandate, the proper audience is the General Assembly, not this Court.

Moreover, not only is the actual statutory language plain and unambiguous, but the Patients’ Bill of Rights is a remedial act, and is therefore subject to the well-settled common law principle that “remedial statutes should be construed liberally in favor of those whom the law is intended to protect.” Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10, 18 (1997). See Mahoney v. Lensink, 213 Conn. 548, 556 (1990) (“Because the patients’ bill of rights is remedial in nature, its provisions should be liberally construed in favor of the class sought to be benefited.”).[6]

Third, the courts of this State, including the Supreme Court, have already determined that the term “Facility” in the Patients’ Bill of Rights is to be given an expansive interpretation. In Mahoney v. Lensink, our Supreme Court held that the Act “defines ‘facility’ expansively to mean ‘any inpatient or outpatient hospital, clinic or other facility for the diagnosis, observation or treatment of the mentally disordered.’” 213 Conn. at 557 n. 13. In so holding, the Court rejected an argument nearly identical to that made by the defendants here:

Although the defendants contend that the legislature’s failure to include “public” [in the Act] indicates that a narrower interpretation of “facility,” limited to those private in nature, is in order, we are unpersuaded. Because the meaning is dependent upon the context and subject matter of the statute, it is apparent here that “any” means “all” or “every.” The use of the phrase “any facility” thus necessarily includes those public in nature as well as their private counterparts.

Id., 213 Conn. at 557-58 n. 13 (emphasis added). Given this unambiguous holding by the State’s highest Court, it is difficult to understand how the defendants can argue that, of all the public and private mental health facilities in the State, those run by the Department of Correction are entitled to be exempted from the requirements of the law.

This argument is particularly difficult to comprehend when one considers that there is “a higher percentage of the occurrence of mental illness [in the criminal justice system] than in the general population,”[7] and that “approximately 12% of the jail and prison populations [i.e., 2400 of the approximately 20,000 persons currently incarcerated in the State] are in need of mental health treatment.”[8] If any other public or private psychiatric facility serving even a fraction of this mentally ill population sought a special dispensation to be relieved of the requirements of the law, this Court would reject the request out of hand. The defendants’ extraordinary request in this case deserves the same response.

Fourth, the defendants’ insistence that the Department of Correction is exempt from the requirements of the Patients Bill of Rights is even more curious when one considers that the Commissioner of the Department of Correction and other high level Department officials have for many years considered the Department to be bound by the Act, and have codified Department Administrative Directives based upon that understanding. Department Administrative Directive 8.5, entitled “Mental Health Services,” requires that the Department “shall provide a range of mental health services for inmates,” and it lists as the first statutory authority for this mandate Section 17a-544 of the Patients Bill of Rights. Indeed, not only does the current version of Directive 8.5 (signed by the Commissioner on May 15, 2000) rely upon the Patients Bill of Rights, but an earlier version (signed by the Commissioner in August 1999, just three months before Bryant Wiseman died) similarly references the Act. See Exhibit A.[9]

Sixth, the defendants’ argument -- that, because some parts of the Patients Bill of Rights conflict with prison-related statutes and regulations, no provision of the Act can protect prisoners -- ignores decades of case law holding that prison officials are not exempt from statutory or constitutional mandates simply because those mandates need to be tailored to the prison environment. The defendants’ argument is, at first glance, superficially appealing. How, they ask, can the Patients Bill of Rights apply to the Department of Correction if the Department and even the Legislature have already determined that inmates are not entitled to some of the rights provided by the Act, such as the right to hold money, the right to make phone calls and the right to wear their own clothing? The superficial appeal of the defendants’ argument falls, however, when one follows the defendant’s argument to its logical conclusion and when one places it in the larger context of prisoner’s rights jurisprudence.

If, for example, the Court were to apply the defendants’ argument to the Bill of Rights of the United States Constitution, its absurdity becomes apparent. Inmates clearly have no Second Amendment right to bear arms; therefore, the defendants would argue, no provision of the Bill of Rights or any other provision of the Constitution can apply to them, including the Eighth Amendment. The Department is thus free to inflict cruel and unusual punishment and to deliberately deprive inmates of needed medical care. Similarly, if the defendants were correct that the Patients Bill of Rights is an “all or nothing” statement of rights, i.e., that psychiatric patients are entitled to each and every provision of the Act or none at all, then the Court would be forced to hold that the Act doesn’t apply to psychiatric patients at the Whiting Forensic State hospital, indisputably a “facility” within the meaning of the Act. Some of the “maximum security” and “dangerous” patients committed to Whiting (Conn. Gen. Stat. §§ 17a-561, 566) are, from time to time, legitimately denied their right to hold property and to make phone calls;[10] but this doesn’t mean that Whiting isn’t a “facility” within the meaning of the Patients Bill of Rights. Indeed, the Supreme Court in Mahoney has already held that it is. The defendants’ argument plainly proves too much.

The proper analysis is the exact opposite of that proposed by the defendants. The Court does not begin with the assumption that, because some provisions of the Patients’ Bill of Rights do not apply to prisoners, the entire Act does not apply. Rather, the Court begins with the assumption that the entire Act applies, and then proceeds to determine whether, due to legitimate penological interests, the Defendants may be relieved from the obligation to comply with certain portions. See, e.g., Washington v. Harper, 494 U.S. 210, 223 (1990) (“[T]he proper standard for determining the validity of a prison regulation claimed to infringe on an inmate’s constitutional rights is to ask whether the regulation is ‘reasonably related to legitimate penological interests.’” (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); Procunier v. Martinez, 416 U.S. 396, 418 (1974) (“The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.”).

Applying this well-settled analysis to the facts of this case, it may well be that prison regulations impinging on an inmate’s right to hold money, to make phone calls or to wear his own clothing are valid because they are reasonably related to legitimate penological interests. And if the Complaint in this case sought to enforce those provisions of the Patients Bill of Rights, the Court might have grounds to dismiss the complaint. However, the defendants have pointed to no legitimate penological interests – and there are none – that could justify a failure to comply with those provisions of the Patients Bill of Rights that are sought to be enforced in this case, i.e., the requirements that the defendants provide humane and dignified treatment and a specialized treatment plan, and that they conduct proper psychiatric examinations. Conn. Gen. Stat. §§ 17a-542 and 545. Indeed, according to the Department’s own Administrative Directives, the defendants are already compelled to do substantially that which the Patients Bill of Rights mandates. Administrative Directive 8.5(5), for example, mandates that “[o]nce it is determined that an inmate will receive ongoing mental health services a treatment plan shall be written by the assigned mental health staff member following the first encounter.” Exhibit A. There is no legitimate penological interest interfering with the defendants’ obligation or ability to comply with those provisions of the Patients Bill of Rights that are the subject of this Complaint.

Finally, the defendants’ insistence that the Department of Correction (unlike every other private and public provider of psychiatric treatment and services in the State) is exempt from the requirements of the Patients Bill of Rights fails to consider the profoundly negative consequences that would result if such an argument were to be accepted by this Court. Indeed, the Act’s application to prison facilities is even more critical than its application to other public and private hospitals because an incarcerated psychiatric patient is entirely dependant upon the Department and its doctors and officials for adequate psychiatric care, treatment and supervision. See, e.g., Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death.’”). A clear analogy can thus be drawn between the facilities of the Department of Correction and the State hospitals discussed by the Supreme Court in Mahoney. In that case, the Court held that the Patients Bill of Rights applies, among other places, to State hospitals to whom patients are involuntarily admitted because “[w]hen a person has been institutionalized within a state mental health facility ... the state voluntarily assumes a duty to provide treatment ... and the patient acquires, by virtue of his hospitalization, a constitutionally protected liberty interest ... in these obligatory services.” Mahoney, 213 Conn. 548, 571.

It cannot be disputed that the Garner Correctional Institution and other facilities of the Department of Correction function as de facto psychiatric hospitals, and that they provide comprehensive psychiatric treatment and services to a profoundly mentally ill and captive population. The Department admits that Garner “operates an intensive mental health program for inmates who are assessed with serious mental health concerns,” and that Garner doctors use “mental health medications” and other psychiatric treatment protocols. See Garner Correctional Institution description, Exh. D. The Department’s Administrative Directives provide for the use of “psychoactive medication.” See Administrative Directive 8.8, attached as Exh. A. “The DOC has psychiatrists, psychologists, and counselors of its own and treats the vast majority of inmates needing mental health services itself.” July 31, 1995 Office of Legislative Research Report at 1, attached as Exh. E. Not only was Bryant Wiseman diagnosed and treated for paranoid schizophrenia during the years preceding his death (Complaint ¶ 3), but the Department has created and routinely employs an “Objective Classification Manual” that requires periodic assessment of all inmates for psychiatric disabilities, and that recognizes that some substantial portion of inmates must be classified as having moderate to severe psychiatric impairments, including major psychosis, affective disorder, severe depression and suicidal attempts. See Manual at 28-30, attached as Exh. F.

In their motion, the defendants never pause to answer or even to ask the question: Why would the Legislature exempt from the dictates of this remedial, comprehensive statutory scheme one of the largest providers of psychiatric services in the State whose profoundly mentally ill patients have no where else to turn for care? The answer, as the clear language of the Act and all other supporting authority makes clear, is: it didn’t. The Defendants’ motion to dismiss the Ninth, Tenth and Eleventh Counts must be denied.

D. The Complaint More Than Adequately Alleges that Defendants Joughin, Maldonado and Hoffler Acted Wantonly, Willfully or Recklessly for Purposes of the Patients Bill of Rights Counts.

Defendants Joughin, Maldonado and Hoffler argue that the Ninth, Tenth and Eleventh Counts must be dismissed against them because, in their view, the Complaint does not “allege any specific facts to suggest that [they] acted wantonly, willfully or recklessly.” Defs’ Mem. at 30. [11] The defendants are mistaken, and they have, once again, missed the forest for the trees.

In their memorandum, these defendants focus on only four paragraphs of the Complaint. They insist that the entirety of the Complaint’s allegations against Dr. Hoffler are that he “discontinued” Bryant Wiseman’s required anti-psychotic medication, that the entirety of the Complaint’s allegations against Dr. Joughin are that “three years earlier, in November 1996, he ‘ordered that Bryant be given anti-psychotic medication,’” and that the entirety of the Complaint’s allegations against Social Worker Maldonado are that he previously “noted that Wiseman had poor compliance with his medications and decompensated rapidly when he stops taking” them. Defs’ Mem. at 30-31 (citing Complaint ¶¶ 36, 39, 42 and 43). Based on this narrow and incomplete reading of the Complaint, the defendants then argue that these actions “are no more than garden variety medical decisions that do not rise to the level of reckless, wanton or malicious conduct.” Defs’ Mem. at 31.

For some reason, the defendants have ignored the additional eighteen paragraphs of the Complaint specifically alleging their willful, wanton and reckless acts and omissions. Specifically, the Complaint read in its entirety alleges that:

-- Notwithstanding defendants Joughin’s, Maldonado’s and Hoffler’s knowledge that Bryant Wiseman required adequate and proper anti-psychotic medication in order to control his schizophrenia, to enable him to function properly and to prevent his becoming paranoid, aggressive and disruptive, they failed and refused to prescribe and administer such anti-psychotic medications;

-- The types of medications prescribed for Bryant, the dosage levels for those medications, and the time periods during which those medications were prescribed were all inadequate to properly treat Bryant’s illness and to control his paranoia and aggression;

-- As a result, Bryant’s mental illness went substantially untreated or inadequately treated for much of the time that he was incarcerated, and he suffered frequent episodes of decompensation and resulting paranoia, fear, aggression and other psychotic symptoms;

-- Bryant’s need for anti-psychotic medications, his potential for non-compliance, and the resulting risk of aggression, were all well known to these defendants and had been recorded by these defendants in the medical record;

-- Notwithstanding Bryant’s profound and well-documented need for anti-psychotic medication, his well-documented potential for rapid decompensation, paranoia and aggression in the absence of such medication, and the fact that any such aggressive behavior would lead inevitably to Bryant being forcibly subdued and restrained by one or more correctional officers and other custodial staff, on November 1, 1999, just days before Bryant’s death, defendant Hoffler ordered that Bryant’s anti-psychotic medication be “discontinue[d] if [patient] remains noncompliant;”

-- Following Dr. Hoffler’s order, Bryant, as he had on numerous prior occasions, became non-compliant with his anti-psychotic medication, and he refused to take the required dosages numerous times between November 1 and November 15. Pursuant to Hoffler’s order, Bryant’s anti-psychotic medication was then discontinued on November 15, 1999;

-- There was no valid medical reason for discontinuing Bryant’s anti-psychotic medication; Dr. Hoffler’s order was a grave and unforgivable breach of the standard of care;

-- As a result of the discontinuance of his medication, and as a result of the failure of the defendants to properly monitor and evaluate his condition, Bryant rapidly decompensated and became aggressive. His propensity for rapid decompensation and immediate aggression was well-documented in the clinical record, and it should have been anticipated and prevented by Bryant’s doctors and nurses;

-- On November 16, 1999, the day before Bryant was killed, Dr. Hoffler examined Bryant and wrote in the clinical record that Bryant had been exhibiting “bizarre behavior” for the past two days and was “possibly decompensating,” but he and the other medical workers responsible for Bryant’s care failed and refused to schedule an immediate psychiatric consultation for Bryant, and they failed to do anything to ensure that Bryant was promptly given anti-psychotic medication; and

-- On November 17, two days after Dr. Hoffler discontinued Bryant’s anti-psychotic medication, Bryant followed the same pattern of rapid decompensation, paranoia and aggression that he had followed numerous times in the past, he got into an altercation with a fellow inmate, and he was forcibly restrained, subdued and killed by correctional staff.

See Complaint ¶¶ 28-50.

The acts and omissions of defendants Hoffler, Joughin and Maldonado -- that they deliberately and intentionally withheld from a paranoid schizophrenic psychiatric patient treatment, supervision and anti-psychotic medication that they knew the patient desperately required in order to avoid a major psychotic episode and all of the harm that they knew would result -- is clearly willful and reckless conduct in the extreme. Almost by definition, this conduct “indicates a reckless disregard of the just rights or safety of [Bryant Wiseman] or of the consequences of the action.” Elliot v. Waterbury, 245 Conn. 385, 415 (1998). These defendants’ conduct is “highly unreasonable” per se, and it plainly involves “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” Id.

Indeed, in factual circumstances nearly identical to those presented here, the courts of this State have routinely found that doctors and other medical workers acted wantonly or recklessly for purposes of personal liability. See, e.g., Bradley v. Central Naugutuck Valley Help, 1997 Conn. Super. LEXIS 463 at *8 (1997) (“allegations of the failure to provide supervision for a patient suffering from [obvious medical problems] are sufficient specifications of wanton neglect” for purposes of the Patients Bill of Rights); Joyner v. Barbieri, 1995 Conn. Super. LEXIS 3242 * 3, 12-14 (1995) (allegations that inmate had been given “medication prescribed for another inmate” and then no medication at all were sufficient to set forth wanton, reckless or malicious conduct under § 4-165).

The Complaint more than adequately alleges that defendants Hoffler, Joughin and Maldonado engaged in wanton, willful and reckless acts and omissions sufficient to make them personally liable for violations of the Patients Bill of Rights. The motion to dismiss the Ninth, Tenth and Eleventh Counts against these defendants must be denied.

Respectfully submitted,

THE PLAINTIFF

Dated: January 17, 2003 By___________________________

Antonio Ponvert III, Esq.

Koskoff, Koskoff & Bieder, P.C.

350 Fairfield Avenue, 5th Floor Bridgeport, CT 06604

Tele: (203) 336-4421

Juris No. 32250

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[1] The Defendants’ assertion that “[t]he only allegation against defendant [Correctional Nurse] Storey is that she spoke to a Department of Correction staff psychiatrist who ordered that Mr. Perry be tied down by his hands and feet” (Def’s Mem. at 3, emphasis added) is particularly misplaced. In fact, the Complaint specifically alleges that Storey “stood by and watched” while correctional officers “descended upon Timothy and restrained him with the use of force.” Complaint ¶ 69. And it specifically defines Storey as one of the “Perry Correctional Employee Defendants” (Complaint ¶ 23) who intentionally and deliberately failed to report specific information known to them concerning a severe and imminent risk of harm to mentally ill inmates in the custody of the Department. Complaint, Count Four.

[2] Relying as it does on the Defendants’ factual assertion that “plaintiff cannot establish that the Perry defendants were personally involved in the alleged violation of Mr. Wiseman’s constitutional rights” (Defs’ Mem. at 15), their motion is more like a Motion to Strike or a Motion for Summary Judgment than a Motion to Dismiss, and the Court may consider “uncontroverted admissions” such as the Department of Corrections Administrative Directives attached hereto as Exhibit A. Westhart v. Estate of Gagne, 2002 Conn. Super. LEXIS 1348 at 8 (2002). (All cited unpublished decisions are attached hereto as Exhibit G.)

[3] The Court should not even entertain this argument at this stage in the proceedings. See Joyner v. Barbieri, 1995 Conn. Super. LEXIS 3242 * 16-17 (1995) (The Court held that an identical “personal involvement” argument did not “support the ground actually set forth in the motion to dismiss -- lack of subject matter jurisdiction -- but constitutes either an attack on the legal sufficiency of the complaint (which is properly raised by a motion to strike) or on the merits of the claim. [A] motion to dismiss can only be used to contest jurisdiction.”). If the defendants continue to insist that the Court rule on this motion to strike argument at this time, Plaintiff requests that they be prohibited, pursuant to Practice Book § 10-6, from filing a request to revise or an additional motion to strike, and that their next pleading be an answer to the complaint.

[4] Lieutenants are supervisory employees for purposes of this analysis. See, e.g., Provost v. City of Newberg, 262 F.3d 146, 151, 154 (2nd Cir. 2001); Merritt v. Hawk, 153 F. Supp. 2nd 1216, 1227-28 (D. Co. 2001) (Correctional lieutenants are “persons in a position of responsibility” who are properly subject to supervisory liability claims for constitutional deprivations). There is no requirement, as suggested by the defendants, that a person must be a “policy maker” to be held liable on a deliberate indifference to safety/failure to protect claim. The defendant’s assertion that Commissioner Armstrong is the one and only employee in the entire Department of Correction who may properly be sued for deliberate indifference to, or for failing to protect, inmates (Defs’ Mem. at 14) is utterly unsupported in the law.

[5] For example, as in this case, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk was “expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.” Id. at 842.

[6] The defendants ignore these rules of statutory construction in favor of a rule the benefits them, i.e., that statutes “in derogation of the state’s sovereign immunity ... must be narrowly construed.” Defs’ Mem. at 16. However, the defendants fail to inform the Court that the State has already made - and lost - that argument in the specific context of the Act under consideration here. See Mahoney, 213 Conn. at 558 (“Despite the defendants’ contentions to the contrary, we conclude that ... the legislature intended to provide a direct cause of action against the state and thus to waive its sovereign immunity.”).

[7] The Governor’s Blue Ribbon Commission Report on Mental Health, July 2000, at 123, attached hereto as Exh. B.

[8] Report on Jail Diversion, January 31, 2000, at 2-3, attached hereto as Exh. C. This Report, co-authored by the Commissioner of the Department of Correction, acknowledges that even this calculation considerably underestimates the number of mentally ill persons behind prison walls. “Because this estimate reflects only one point in time, the numbers of inmates needing treatment in the course of a year is considerably higher.” Id. at 3. To the extent that the defendants’ argument to be immune from the requirements of the Act rests on any claim that the Department of Correction does not actually “diagnose, observe or treat persons with psychiatric disabilities,” their motion is more like a Motion to Strike or a Motion for Summary Judgment than a Motion to Dismiss, and the Court may consider “uncontroverted admissions” such as those attached hereto. Westhart, 2002 Conn. Super. LEXIS 1348 at 8.

[9] Thus, the defendants’ reliance on a self-serving September 1997 Attorney General opinion is misplaced. While it is true that an attorney general’s opinion is “entitled to careful consideration” (Roto-Rooter Services Co. v. Dept. of Labor, 219 Conn. 520, 526 (1991), it probably merits far less consideration when it has been rejected by the Agency that actually sought it.

[10] See Defs’ Mem. at 29 (quoting Sastrom v. Mullaney, 1999 WL 1241246 *2-3 (Conn. Super. 1999)) (Whiting policy prohibits patients from holding combs, toothbrushes and pens).

[11] The Court should not even entertain this argument at this stage in the proceedings because “this issue is more properly raised on a motion to strike.” Zigmund v. Leone, 1999 WL 1120127 at n. 8 (Conn. Super. 1999). See also Sastrom v. Pomizano, 2002 WL 1293265 at *4 (Conn. Super. 2002) (treating an identical motion to dismiss as a motion to strike). Both of these decisions are relied upon by the defendants and are attached to their memorandum. Again, if the defendants continue to insist that the Court rule on this motion to strike argument at this time, Plaintiff requests that they be prohibited, pursuant to Practice Book § 10-6, from filing a request to revise or an additional motion to strike, and that their next pleading be an answer to the complaint.

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