DOCKET NO.: CV 02 0821661 ) SUPERIOR COURT
ELAINE WISEMAN, ADMINISTRATOR )
OF THE ESTATE OF BRYANT ) JUDICIAL DISTRICT OF
) HARTFORD AT HARTFORD
JOHN J. ARMSTRONG, ET AL. ) JANUARY 17, 2003
PLAINTIFF’S MEMORANDUM OF LAW IN
OPPOSITION TO DEFENDANTS’ AMENDED MOTION TO DISMISS
“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
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
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.
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.
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.
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.
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
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.)
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
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,
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
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.
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.
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.
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
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
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.
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
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
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
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 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:
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
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
The Governor’s Blue Ribbon Commission Report on Mental Health, July 2000, at 123, attached
hereto as Exh. B.
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
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
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
Court may consider “uncontroverted admissions” such as those attached hereto. Westhart, 2002
Conn. Super. LEXIS 1348 at 8.
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.
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
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
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).
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,
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
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.
‘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-
-- 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-
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.
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