United States District Court, D. Connecticut
RULING AND ORDER
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
The plaintiff, Robert Coover, is currently confined at Garner Correctional Institution in Newtown, Connecticut. He has filed a complaint pursuant 42 U.S.C. § 1983 naming Correctional Officer Phillip Brown as a defendant. For the reasons set forth below, the complaint is dismissed with leave to amend.
Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil complaints against governmental actors and “dismiss ... any portion of [a] complaint [that] is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or that “seeks monetary relief from a defendant who is immune from such relief.” Id. Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Although detailed allegations are not required, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). A complaint that includes only “‘labels and conclusions, ’ ‘a formulaic recitation of the elements of a cause of action’ or ‘naked assertion[s]’ devoid of ‘further factual enhancement, ’” does not meet the facial plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts still have an obligation to interpret “a pro se complaint liberally, ” the complaint must include sufficient factual allegations to meet the standard of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).
The plaintiff asserts that during jury selection prior to his murder trial, Correctional Officer Brown transported him to and from state court each day. See Compl. at 4. At the time, the plaintiff was confined at the MacDougall-Walker Correctional Institution (“MacDougall-Walker”). See id.
During one of the trips from court to MacDougall-Walker, Officer Brown allegedly overheard the plaintiff threaten to harm anyone who might testify against him. See Id. Officer Brown issued the plaintiff a disciplinary report for threats. See Id. Upon his arrival at MacDougall-Walker, defendant Brown escorted the plaintiff to the restrictive housing unit. See id.
The plaintiff claims that there was no “sanitary/hygiene material” in the unit. Id. at 4. The Plaintiff does not allege that Officer Brown was aware that there were no sanitary materials in the cell. A captain investigated the disciplinary charge. Three days later, he dismissed the charge and released the plaintiff from the restrictive housing unit. See id.
In October 2012, Officer Brown testified at the plaintiff’s criminal trial regarding the alleged threats made by the plaintiff to witnesses who might be called to testify. See Id. at 4-5. The plaintiff’s attorney, the prosecutor and the judge all questioned Officer Brown, who changed his story several times while on the witness stand. See Id. at 5. The plaintiff claims that the jury acquitted him and there was no finding of witness tampering. See Id. at 5-6.
The Plaintiff filed an earlier civil action in this district which includes the same allegations against Officer Brown that are described above identified as Coover v. Burke, Case No. 3:15cv1543 (VLB).  See Id. at Dkt. 1. The plaintiff amended the complaint in that action to eliminate the allegations against Officer Brown but subsequently filed the present action. See Id. at Dkt. 4.
I. Due Process
The plaintiff claims that defendant Brown violated his due process rights under the Fifth and Fourteenth Amendments. The Fifth Amendment applies to the federal government, not to the states. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (holding that the Fifth Amendment's Due Process Clause protects citizens against only federal government actors, not State officials); Ambrose v. City of New York, 623 F.Supp.2d 454, 466-67 (S.D.N.Y. 2009) (holding that any due process claim against the city was “properly brought under the Fourteenth Amendment, not the Fifth Amendment”). The plaintiff has not alleged that a federal official violated his Fifth Amendment rights. Nor has he otherwise alleged facts to state a claim under the Fifth Amendment. Accordingly, the Fifth Amendment claims are dismissed. See 28 U.S.C. § 1915A(b)(1).
The plaintiff asserts facts to suggest that he was an unsentenced detainee at the time that defendant Brown issued him a false disciplinary report for threats and placed him in the restrictive housing unit. The Second Circuit has held that a pretrial detainee who is subject to punishment for an infraction is entitled to the Fourteenth Amendment due process protections set forth in Wolff v. McDonnell, 418 U.S. 539 (1974). See Benjamin v. Fraser, 264 F.3d 175, 190 (2d Cir. 2001). Because the plaintiff has alleged that his placement in the restrictive housing unit was punitive in nature, he had a liberty interest in avoiding that placement without due process of law. As a liberty interest has been established, the court next determines whether the process afforded the plaintiff prior to his placement in the restrictive housing unit was constitutionally sufficient.
In Wolff, the Supreme Court held that an inmate charged with a disciplinary violation is not entitled to advance notice, but rather is only entitled to written notice of the charges at least twenty-four hours in advance of the hearing, the opportunity to present witnesses and documentary evidence before an impartial hearing officer or committee as long as doing so will not jeopardize prison safety and security and a written statement including evidence relied on by the hearing officer in reaching his or her decision and the reasons for the disciplinary action. Id. at 564-66. An inmate has no right to retained or appointed counsel at a disciplinary hearing, but in some circumstances may be entitled to the appointment of an advocate or assistance from a fellow inmate. Id. at 570.
The plaintiff concedes that a captain investigated the allegations in the disciplinary report and concluded that they were not valid. Thereafter, the captain dismissed the charge and released the plaintiff from the restrictive housing unit. The plaintiff does not allege that defendant Brown or any other correctional official deprived him of the procedural due process protections set forth in Wolff. The allegation that defendant Brown falsely accused him of threatening potential witnesses and placed him in the ...