United States District Court, D. Connecticut
December 27, 2016
CHRISTOPHER FARROW, Plaintiff,
C/O RACHAVICH, Defendant
INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. §
Jeffrey Alker Meyer United States District Judge
Christopher Farrow is currently confined at the Osborn
Correctional Institution in Somers, Connecticut
(“Osborn”). He brings this pro se §
1983 action against Correctional Officer Rachavich, alleging
a denial of his constitutional right of access to the courts
and retaliation in violation of his First Amendment rights to
free speech and to file a court action. For the reasons set
forth below, I conclude that plaintiff has plausibly alleged
a claim of First Amendment retaliation, but that his claim
for denial of the constitutional right of access to the
courts should be dismissed without prejudice to re-filing of
an amended complaint.
following facts are alleged in the complaint and accepted as
true only for purposes of this initial ruling. On February 9,
2016, plaintiff had a conversation with Correctional Officer
Rachavich in which plaintiff indicated that he intended to
file paperwork with the Claims Commissioner about the
conditions of his confinement at Osborn. Defendant asked
plaintiff if he was trying “to make us look bad.”
Doc. #1 at 2. As plaintiff was leaving his cell, defendant
stopped him, told him that his “family” worked at
the prison, and suggested to plaintiff that he was not
“going to let [him] make the system look bad.”
Ibid. Plaintiff responded that it was “nothing
personal but the living conditions that we are suffering
through are outrageous.” Ibid. Defendant
replied that, if it were up to him, nothing would be done by
plaintiff to embarrass defendant's co-workers or to make
inmates more comfortable. Later that day, while plaintiff was
at recreation, defendant entered plaintiff's cell and
removed the paperwork pertaining to plaintiff's legal
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. Moreover, the allegations of a
pro se plaintiff's complaint must be read
liberally to raise the strongest arguments that they suggest.
See Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d
Cir. 2010) (discussing special rules of solicitude for
pro se litigants).
recent years, the Supreme Court has set forth a threshold
“plausibility” pleading standard for courts to
evaluate the adequacy of federal court complaints. A
complaint must allege enough facts-as distinct from legal
conclusions-that give rise to plausible grounds for relief.
See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Even a pro se complaint may not survive
dismissal if its factual allegations do not meet the basic
plausibility standard. See, e.g., Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015).
for Denial of Right of Access to Courts
Supreme Court has long recognized a constitutional right of
access to the courts, notwithstanding that the right's
precise source in the Constitution remains uncertain. See
Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002);
see also Blake v. Dowe, 36 F.Supp.3d 271, 276-77 (D.
Conn. 2014). Whatever its pedigree, a right of access to the
courts correlatively means a right to be free from
obstruction of this right by the government. Prisoners have a
constitutional right of access to the courts that may not be
unreasonably obstructed by the actions of prison officials.
See Washington v. James, 782 F.2d 1134, 1138 (2d
state a claim for denial of access to the courts, a plaintiff
must demonstrate that he suffered an actual injury, see
Lewis v. Casey, 518 U.S. 343, 353 (1996)-that is, he
must allege that “defendant's conduct deprived him
of an opportunity to press some nonfrivolous, arguable cause
of action in court.” Brown v. Choinski, 2011
WL 1106232, at *5 (D. Conn. 2011). What this means is that
“the underlying cause of action, whether anticipated or
lost, is an element that must be described in the complaint,
just as much as allegations must describe the official acts
frustrating the litigation, ” and “the underlying
cause of action and its lost remedy must be addressed by
allegations in the complaint sufficient to give fair notice
to a defendant.” Christopher, 536 U.S. at 415,
plaintiff must describe “the predicate claim . . . well
enough to apply the ‘nonfrivolous' test and to show
that the ‘arguable' nature of the underlying claim
is more than hope.” Id. at 416. In this
manner, “the complaint should state the underlying
claim in accordance with Federal Rule of Civil Procedure
8(a), just as if it were being independently pursued, and a
like plain statement should describe any remedy available
under the access claim and presently unique to it.”
Id. at 417-18 (footnote omitted).
the complaint is plainly lacking a description of the
underlying cause of action that has been allegedly impeded by
defendant's alleged misconduct. Plaintiff does no more
than note that the confiscated paperwork involved “a
claim regarding my condition of confin[e]ment, ” Doc.
#1 at 2, without alleging specific dates and facts of the
claim in accordance with Fed.R.Civ.P. 8(a). In addition,
because of the complaint's sparse allegations, there is
no way to ascertain if the underlying claim was of arguable
merit or was frivolous.
plaintiff's claim of denial of access to the courts has
not been adequately pleaded, I will dismiss the claim without
prejudice. If plaintiff believes that he is able to allege
specific facts concerning the underlying cause of action that
was impeded and to show that this action would not have been
frivolous, then plaintiff may file an amended complaint
within 30 days to allege a claim for denial of his
constitutional right of access to the courts.
establish a First Amendment retaliation claim, a plaintiff
must allege facts showing “(1) that the speech or
conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was
a causal connection between the protected speech and the
adverse action.” Dolan v. Connolly, 794 F.3d
290, 294 (2d Cir. 2015). Unlike a claim for denial of access
to the courts, a claim of First Amendment retaliation
involving the filing of a legal action does not require proof
that the underlying claim was impeded. See Allah v.
Greiner, 2007 WL 1280657, at *6 (S.D.N.Y. 2007).
it is readily apparent that plaintiff has alleged all the
basic requisites for a First Amendment retaliation claim.
Plaintiff alleges that his legal papers were confiscated soon
after telling defendant that he intended to file a legal
claim and soon after defendant expressed his disapproval of
plaintiff's First Amendment retaliation claim may proceed
against defendant in his personal capacity. To the extent
that plaintiff seeks monetary damages from defendant in his
official capacity, his claims are barred by the Eleventh
Amendment. See Kentucky v. Graham, 473 U.S. 159
(1985); Quern v. Jordan, 440 U.S. 332, 342 (1979).
substantial question also exists whether plaintiff exhausted
his administrative remedies prior to filing this lawsuit and
as required under the Prison Litigation Reform Act (PLRA), 42
U.S.C. § 1997e(a). Because I do not yet have enough
information about whether plaintiff has sought to exhaust his
administrative remedies and whether his claim would be
subject to the exhaustion requirement, it would be premature
at this time for me to consider whether to dismiss
plaintiff's claim for failure to exhaust administrative
remedies. See Williams v. Correction Officer
Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (noting that
“inmates are not required to specially plead or
demonstrate exhaustion in their complaints, ” but that
“a district court still may dismiss a complaint for
failure to exhaust administrative remedies if it is clear on
the face of the complaint that the plaintiff did not satisfy
the PLRA exhaustion requirement”).
accordance with the foregoing analysis, the Court enters the
claim for denial of access to the courts is DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1). On or before
January 27, 2017, plaintiff may file an amended complaint if
he can allege facts in good faith that set forth plausible
grounds for relief with respect to his claim of denial of
access to the courts. If plaintiff chooses to file an amended
complaint, he shall identify specific facts and dates
supporting any underlying cause of action that he alleges is
or has been impeded by the confiscation of his paperwork to
the Claims Commissioner.
complaint will proceed on the claim against defendant for
First Amendment retaliation.
Clerk shall verify the current work address of defendant with
the Department of Correction Office of Legal Affairs, mail a
waiver of service of process request packet to each defendant
at the confirmed address within twenty-one (21) days of this
Order, and report to the Court on the status of the waiver
request on the thirty-fifth (35) day after mailing. If
defendant fails to return the waiver request, the Clerk shall
make arrangements for in-person service by the U.S. Marshals
Service on defendant in his individual capacity and defendant
shall be required to pay the costs of such service in
accordance with Federal Rule of Civil Procedure 4(d).
Clerk shall prepare a summons form and send an official
capacity service packet to the U.S. Marshal Service. The U.S.
Marshal is directed to effect service of the complaint on
defendant in his official capacity at the Office of the
Attorney General, 55 Elm Street, Hartford, CT 06141, within
twenty-one (21) days from the date of this order and to file
a return of service within thirty (30) days from the date of
Clerk shall send written notice to plaintiff of the status of
this action, along with a copy of this Order.
Clerk shall send a courtesy copy of the Complaint and this
Ruling and Order to the Connecticut Attorney General and the
Department of Correction Office of Legal Affairs.
Defendant shall file his response to the complaint, either an
answer or motion to dismiss, within sixty (60) days from the
date the waiver form is sent. If he chooses to file an
answer, he shall admit or deny the allegations and respond to
the cognizable claim recited above. He also may include any
and all additional defenses permitted by the Federal Rules.
Discovery, pursuant to Federal Rules of Civil Procedure 26
through 37, shall be completed within seven months (210 days)
from the date of this order. Discovery requests need not be
filed with the Court.
motions for summary judgment shall be filed within eight
months (240 days) from the date of this order.
Pursuant to Local Civil Rule 7(a), a nonmoving party must
respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed. If no response is filed, or
the response is not timely, the dispositive motion can be
granted absent objection.
plaintiff changes his address at any time during the
litigation of this case, Local Court Rule 83.1(c)2 provides
that the plaintiff MUST notify the court. Failure to do so
can result in the dismissal of the case. Plaintiff must give
notice of a new address even if he is incarcerated. Plaintiff
should write PLEASE NOTE MY NEW ADDRESS on the notice. It is
not enough to just put the new address on a letter without
indicating that it is a new address. If plaintiff has more
than one pending case, he should indicate all of the case
numbers in the notification of change of address. Plaintiff
should also notify defendant or the attorney for defendant of
his new address.
Plaintiff shall utilize the Prisoner Efiling Program when
filing documents with the Court.