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Cooke v. Deschaine

United States District Court, D. Connecticut

December 15, 2016

IAN COOKE, Plaintiff,
v.
KEITH DESCHAINE, et al., Defendants.

          INITIAL REVIEW ORDER

          Stefan R. Underhill United States District Judge.

         Ian Cooke, currently confined at Garner Correctional Institution, has filed a second amended complaint pursuant 42 U.S.C. § 1983. Cooke's amended complaint names a former commissioner of correction, two directors of the Department of Correction security division, five employees of Cheshire Correctional Institution, legal counsel for the Department of Correction and the current Commissioner of Correction. For the reasons set forth below, the second amended complaint is dismissed in part.

         Under section 1915A of Title 28 of the United States Code, I must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that 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. 28 U.S.C. § 1915A. Although detailed allegations are not required, a complaint must set forth “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

         “A claim has facial plausibility when the pleaded factual content 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)) (internal quotation marks omitted). Although courts still have an obligation to liberally construe a pro se complaint, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the complaint must include sufficient factual allegations to meet the standard of facial plausibility.

         On June 28, 2016, I reviewed Cooke's first amended complaint and determined that it contained multiple claims regarding incidents that had occurred at two different facilities and involved different defendants. I concluded that the first amended complaint did not comply with Rules 8 and 20 of the Federal Rules of Civil Procedure. I directed Cooke to file a second amended complaint that included only one claim. I warned Cooke that if the amended complaint failed to comply with the instructions in this order or the amended complaint form or the requirements of Rules 8 and 20 of the Federal Rules of Civil Procedure, the action would be subject to dismissal with prejudice.

         The second amended complaint includes the following allegations: Prior to September 2010, former Commissioner Arnone began to investigate the implementation of a new policy encompassing further restrictions on inmates' possession of materials depicting nudity. Former Commissioner Arnone organized a review panel to determine whether the prior ban on sexually explicit materials should be revised. Attorney Kase-O'Braskey and Director of Security Weir were members of the review panel. The panel determined that all nudity should be restricted from materials sent to or possessed by inmates. On June 19, 2012, former Commissioner of Correction Arnone revised State of Connecticut Department of Correction Directive 10.7 in accordance with the panel's conclusions. The new policy banned written and pictorial depictions of sexual activity or nudity. See Administrative Directive 10.7 (3)(L) & (4)(N). Cooke challenges the directive both facially and as it was applied to him during an incident that occurred in February 2013 as violative of his First Amendment rights.

         In February 2013, Correctional Officer Deschaine unlawfully searched Cooke's cell for three hours and confiscated various pieces of his personal property, including paintings, art materials, art books, magazines, photographs, clothing and music CDs. Lieutenant Hogan and Correctional Officer Deschaine searched Cooke's property a second time. Cooke received two disciplinary reports, one for security tampering and one for possessing sexually explicit materials. Cooke subsequently pleaded guilty to both disciplinary reports and received various sanctions.

         Cooke claims that after completing his time in segregation, he retrieved his personal property from storage and discovered that several completed paintings, several partially completed paintings/drawings and numerous art reference books had been confiscated from him. He was unable to secure the return of any of the property confiscated from his cell by Officer Deschaine and Lieutenant Hogan. Nor was he permitted to send home the paintings and other materials that violated the Department of Correction's ban of sexually explicit materials.

         Cooke contends that his paintings met the art exception to the sexually-explicit materials ban and that Officer Deschaine and Lieutenant Hogan improperly confiscated those items in violation of his First and Fourteenth Amendment rights. Cooke appealed the confiscation of his artwork to Warden Brighthaupt, Deputy Warden Powers and Counselor Supervisor Garcia, but they either ignored the alleged improper confiscation of Cooke's personal property or approved the actions of Officer Deschaine and Lieutenant Hogan.

         Cooke sent requests to Commissioner Arnone regarding the ambiguous and vague language contained in the sexually-explicit materials ban. He sought clarification of the art exception to the ban. He did not receive a response from Commissioner Arnone. Cooke also filed grievances challenging the ban. In response, Commissioner Arnone and Security Director Weir reiterated the language of directive without providing any clarification of the language. Cooke subsequently asked Security Director Whidden to clarify the art exception to the directive. She responded that the depiction constituted art only if a lay person could learn something from viewing it.

         Cooke sues defendants Deschaine, Hogan, Garcia, Powers and Brighthaupt in their individual and official capacities and defendants Commissioner Arnone, Semple, Weir, Whidden and Kase-O'Braskey in their official capacities. Cooke seeks monetary damages and declaratory and injunctive relief.

         I. Section 1983 Claims

         Cooke alleges that the defendants violated his rights to freedom of expression, speech and redress grievances under the First Amendment and his right to due process under the ...


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