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Amran v. Cowin

United States District Court, D. Massachusetts

August 2, 2019

ASIM AMRAN, Plaintiff,
v.
BRAD COWIN, SUPERINTENDENT MCI -NORFOLK, MICHAEL FRATTASIO, and TIMOTHY SHERRY, Defendants.

          MEMORANDUM AND ORDER

          DENISE J. CASPER UNITED STATES DISTRICT JUDGE

         For the reasons stated below, the Court denies the motion to proceed without prepayment of fees and costs, denies without prejudice the motion for order to allow the United States Marshal to complete service, dismisses sua sponte portions of the complaint, and issues summonses as to the defendants.

         I. Background

         On March 11, 2019, pro se Plaintiff Asim Amran (“Amran”) filed a complaint (D. 1) against former Superintendent of MCI - Norfolk Brad Cowin (“Cowin”), Lieutenant Michael Frattasio (“Frattasio”) and Corrections Officer Timothy Sherry (“Sherry”). Amran's motion to proceed in forma pauperis (D. 6) and motion for order to allow U.S. Marshals to complete service (D. 7) are also pending.

         The following is a summary of facts as alleged by Amran. Amran is serving a life sentence at MCI-Norfolk. Compl. ¶ 7. He suffers from colitis, a medical condition that can cause him to soil himself without warning. Compl. ¶¶8-10. Although he is receiving treatment for the disease, it is not under control. Compl. ¶10. Accordingly, when Amran leaves his housing unit he wears adult diapers as a precaution. Compl. ¶10. Deputy Superintendent Bennett (“Bennett”) provided a written letter in Amran's housing unit that Amran should be permitted to use the bathroom facilities at any time due to his illness. Compl. ¶13.

         On July 19, 2018, Sherry was assigned as a substitute Corrections Officer for Amran's housing unit. Compl. ¶ 17. At 1:00 p.m., Amran was in the yard. Compl. ¶ 18. At 1:40 p.m., Amran became aware that he had soiled his diaper. Compl. ¶ 19. Amran went back to his unit and asked Sherry for permission to use the bathroom. Id. Sherry refused to allow Amran to use the bathroom and told him return to the yard. Id.

         Amran tried to explain the situation, pointing to the letter concerning his condition on the desk. Compl. ¶ 19. Sherry responded “you want to play games, let's play games.” Compl. ¶ 20. Sherry then told Amran to go outside and come back and ask permission to use the bathroom. Compl. ¶ 21. Amran did exactly that and thereafter Sherry gave Amran permission to use the bathroom. Compl ¶ 22. As Arman began to climb the stairs to his cell, Sherry called him back to his office. Compl ¶ 23. At this point Sherry told Amran, in front of many inmates, “drop your pants and diaper and let me see the shit.” Id. Amran was shocked at the request and repeated it back to Sherry, “You want me to drop my pants and diaper and show you the shit in my diaper?” Id. Sherry responded, “Yes.” Id.

         Thereafter, Amran sought the assistance of Lieutenant Frattasio. Compl. ¶24. Frattasio returned with Amran to his housing unit and sent Amran to use the bathroom in his cell. Compl. ¶ 24. Frattasio then proceeded to the office and reprimanded Sherry for not complying with the written order. Compl. ¶25.

         On July 27, 2018, Amran filed a grievance concerning the incident requesting, among other things, that Sherry be terminated from his employment. Compl. ¶28.

         The following week, Amran sought out Bennett to request a letter for him to carry to make these situations easier. Compl. ¶30. Bennett was not aware of the incident with Sherry, and asked Frattasio what had occurred. Id. Frattasio “began covering up for” Sherry, at which point, Amran told Bennett what had happened and requested to know what consequences Sherry would face. Id. According to Amran, Sherry was not disciplined. Id.

         On September 21, 2018, Amran filed another grievance because he had received no response concerning his initial grievance. Compl ¶ 36. On September 24, 2018, Amran received an extension notice. Compl. ¶36. On November 13, 2018, both grievances were denied because “although . . . [Amran was] . . . questioned on [his] return to Unit 2-3, the Officer refutes the claim of denial due to medical necessity.” Compl. ¶38. The response to the second grievance also denied Amran's claims of retaliation. Compl. ¶39.

         On November 19, 2018, Amran appealed both grievances. Compl. ¶42. On February 5, 2019, Amran received denials of his appeals. Compl. ¶44.

         Amran claims that he was retaliated against by being removed from the list as a potential “house man” job; a desirable job which comes with better pay and a single cell. Compl. ¶67. Amran claims that upon “the calling of Lt. Frattasio, ” non-defendant corrections officer Perry (now retired) ensured that Amran's name was removed from the list and that another non-defendant Corrections Officer Ogara also did not give him the job. Id. Amran claims that Bennett agreed with Amran that this was retaliation and that his name must be placed back on the list. Compl. ¶68.

         II. ...


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