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Al-Bukhari v. Semple

United States District Court, D. Connecticut

September 21, 2018

JA-QURE AL-BUKHARI a/k/a JEROME RIDDICK, Plaintiff,
v.
COMMISSIONER SEMPLE, et al., Defendants.

          RULING ON MOTIONS TO DISMISS, TO STRIKE, TO FILE SUPPLEMENTAL MEMORANDUM AND TO EXTEND DISCOVERY DEADLINE

          Stefan R. Underhill United States District Judge

         The plaintiff, Ja-Qure Al-Bukhari (“Al-Bukhari”), a/k/a Jerome Riddick, is currently confined at MacDougall-Walker Correctional Institution. The Fourth Amended Complaint, Doc. No. 66, names as defendants an assistant attorney general, the Department of Correction and thirty-nine of its employees, and includes twenty-eight counts relating to Al-Bukhari's confinement at Garner Correctional Institution (“Garner”), Cheshire Correctional Institution (“Cheshire”) and Northern Correctional Institution (“Northern”). See id.

         Counts One through Four, Ten through Thirteen and Sixteen pertain to Al-Bukhari's placement in Administrative Segregation at Cheshire and Garner in 2014 and 2015 and the conditions of confinement in Administrative Segregation at Cheshire, Garner and Northern, including mental health treatment, during a period from March 2014 to August 2017; Counts Five through Nine pertain to deprivations of Al-Bukhari's First Amendment right to practice the Muslim religion at Garner and Cheshire in 2014 and 2015; Count Fourteen includes claims pertaining to the issuance of a disciplinary report in May 2015 for security tampering based on Al-Bukhari's unauthorized use of outgoing mail; Count Fifteen pertains to a strip search of Al- Bukhari performed in August 2015; Count Seventeen pertains to a decision by prison staff to deny Al-Bukhari access to a sexually-explicit magazine in December 2014; and Counts Eighteen through Twenty-Eight pertain to violations and the enforcement of the terms of the 2014 Settlement Agreement and the 2015 Clarification of the terms of the agreement entered in Riddick v. Department of Correction, et al., Case No. 13cv656(SRU), including a claim that the defendants refused to enforce the terms of the 2014 Settlement Agreement in retaliation for Al-Bukhari's filing of two lawsuits in 2015. See Id. at 4, 6-39.

         On May 16, 2016, I issued an order consolidating this case with Al-Bukhari v. State of Connecticut, et al., Case No. 3:15cv528(SRU). See Order, Doc. No. 23. On May 17, 2016, the Clerk designated Al-Bukhari v. State of Connecticut, et al., Case No. 3:15cv528(SRU), as a member consolidated case, closed that case and designated this case as the lead case. On July 18, 2017, pursuant to a case management status conference held on July 17, 2017, I issued an order directing the Clerk to consolidate cases Al-Bukhari v. Department of Correction, et al., Case No. 3:16cv439(SRU), and Riddick v. Semple, et al., Case No. 3:16cv1769(SRU), with this lead case and member case Al-Bukhari v. State of Connecticut, et al., Case No. 3:15cv528(SRU), and directed Al-Bukhari to file an amended complaint in this case to assert claims pertaining to his placement in Administrative Segregation and the conditions of confinement in Administrative Segregation. See Order, Doc. No. 64, at 1-2. In accordance with the order, the Clerk designated Al-Bukhari v. Department of Correction, et al., Case No. 3:16cv439(SRU), and Riddick v. Semple, et al., Case No. 3:16cv1769(SRU), as member consolidated cases and closed those cases.

         On August 15, 2017, in compliance with a July 18, 2017 order, Al-Bukhari filed a fourth amended complaint naming as defendants the Department of Correction, Assistant Attorney General Terrence M. O'Neill, Commissioner Scott Semple, District Administrators Peter Murphy and Angel Quiros, Director of Psychiatric Services Craig Burns, Director of Security Christine Whidden, Wardens Henry Falcone, Scott Erfe, Edward Maldonado, Anne Cournoyer, William Mulligan and William Faneuff, Deputy Wardens Derrick Molden, Nathan Hein and Denise Dilworth, Captains Gregorio Robles, Jr., Kyle Mitchell, Jesse Johnson and McDaniels, Lieutenant Eberle, Counselors Michael Calderon, Verrastro and Faraci, Counselor Treatment Officer Taranovich, Correctional Officers Adams, Punter, Burritt, Bernard and McGoldrich, Psychiatrists Ginny Gerbino, Maxine Cartwright and Gerard Gagne, Psychologists Mark Frayne and Guerrero, Dr. Brian Perelmutter, Health Services Administrator Sharon Brown and Social Workers Lisa Simo-Kinzer, John Doe 1, John Doe 2 and Kubeski. See Fourth Am. Compl., Doc. No. 66, at 1-3, 5. On May 31, 2018, Al-Bukhari moved to withdraw counts nineteen through twenty-eight of the fourth amended complaint, which pertain to violations and the enforcement of the March 2014 Settlement Agreement and the 2015 Clarification of the terms of the Agreement. See Mot. Withdraw, Doc. No. 117. On June 5, 2018, I granted the motion to withdraw those claims. See Order, Doc. No. 118.

         On August 16, 2018, I issued an order directing the Clerk to deconsolidate and reopen Riddick v. Semple, et al., Case No. 3:16cv1769(SRU), as the action in which I would address claims for violations and the enforcement of the 2014 Settlement Agreement and the 2015 Clarification of the terms of the agreement entered in Riddick v. Department of Correction, et al., Case No. 13cv656(SRU). See Order of Deconsolidation and Dismissal of Claims, Doc. No. 124; Order Clarifying Claims, Doc. No. 111. I also dismissed Count Eighteen and Counts Five through Nine of the fourth amended complaint filed in this case. See Order of Deconsolidation and Dismissal of Claims at 4-5. I dismissed Count Eighteen because it included a claim of a retaliatory refusal by the defendants to comply with the terms of the 2014 Settlement Agreement and was related to Counts Nineteen through Twenty-Eight. Count Eighteen will be pursued in Riddick v. Semple, et al., Case No. 3:16cv1769(SRU), together with Counts Nineteen through Twenty-Eight. I dismissed Counts Five through Nine because they related to the alleged deprivations of Al-Bukhari's First Amendment right to practice his Muslim religion. Those counts will be pursued in Al-Bukhari v. Connecticut Department Correction, et al., Case No. 3:16cv1267(SRU).

         Member cases, Al-Bukhari v. Correction, et al., Case No. 3:16cv439(SRU), and Al-Bukhari v. Connecticut, et al., Case No. 3:15cv528(SRU), remain closed and consolidated with this case. Thus, Counts One through Four and Ten through Seventeen of the fourth amended complaint remain pending in this case.

         The defendants have filed a motion to dismiss the claims in the fourth amended complaint and a motion to strike Al-Bukhari's sur-reply to their reply to his opposition to the motion to dismiss. Al-Bukhari has filed two memoranda in opposition to the motion to dismiss, a motion to strike the motion to dismiss, a motion for leave to file a second supplemental memorandum in opposition to the motion to dismiss, and a motion to extend the deadline for completion of discovery. For the reasons set forth below, the Motions to Strike (Doc. Nos. 90, 93), Motion for Extension of Time to Complete Discovery (Doc. No. 110), and Motion for Leave to File a Supplemental Memorandum (Doc. No. 113) are denied, and the Motion to Dismiss (Doc. No. 72) is granted in part and denied in part.

         I. Motion for Leave to File Supplemental Memorandum (Doc. No. 113)

         Al-Bukhari seeks permission to file a supplemental memorandum in opposition to the arguments in the motion to dismiss addressed to the breach of the settlement agreement claims asserted in Counts Eighteen through Twenty-Eight. As indicated above, Al-Bukhari has withdrawn Counts Nineteen through Twenty-Eight of the amended complaint, the court has dismissed Count Eighteen of the amended complaint, and the court has informed Al-Bukhari that he may pursue Counts Eighteen through Twenty-Eight in Riddick v. Semple, et al., Case No. 3:16cv1769(SRU). Because Counts Eighteen through Twenty-Eight are no longer pending in this matter, the motion for leave to file a supplemental memorandum in opposition to arguments addressed to those counts is denied as moot.

         II. Motions to Strike (Doc. Nos. 90, 93)

         Al-Bukhari seeks to strike the motion to dismiss to the extent that it is addressed to state law claims in the amended complaint, in particular the settlement/breach of contract claims. The defendants seek to strike Al-Bukhari's sur-reply to their reply to his opposition to the motion to dismiss because it does not comply with Local Rules 7(b) & (d).

         Federal Rule of Civil Procedure 12(f) provides that a court may strike from a pleading “any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Furthermore, motions to strike are generally disfavored in the Second Circuit. See Bass v. Miss Porter's School, 2010 WL 122602, at *1 (D. Conn. Jan. 5, 2010), D'Agostino v. Housing Authority of City of Waterbury, 2006 WL 1821355, at *1 (D. Conn. June 30, 2006), Gssime v. Nassau County, 2014 WL 810876, at *2 (E.D.N.Y. Feb. 28, 2014). The motions to strike do not satisfy Rule 12(f), and Al-Bukhari is granted permission, nunc pro tunc, to file a sur-reply. Accordingly, the motion to strike the defendants' motion to dismiss and memorandum in support of the motion, and the motion to strike Al-Bukhari's sur-reply to defendants' reply to the memorandum in opposition to the motion to dismiss are denied.

         III. Motion to Dismiss (Doc. No. 72)

         The defendants filed their motion to dismiss the claims asserted against them in the fourth amended complaint prior to the withdrawal of counts nineteen through twenty-eight and the dismissal of counts five through nine and eighteen. Thus, some of the arguments in the motion to dismiss are moot, and I will only consider the motion to dismiss to the extent that it addresses the remaining counts in the fourth amended complaint.

         A. Standard of Review

         When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept well-pleaded factual allegations as true and “draw[ ] all reasonable inferences in the non-movant's favor.” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012). In addition to the facts alleged in the complaint, the court may also consider “documents attached [as exhibits] to the complaint[, ] . . . documents incorporated by reference in the complaint[, ] . . . matters of which judicial notice may be taken, or documents either in plaintiff's possession or of which plaintiff[] had knowledge and relied on in bringing suit.” Halebian v. Berv, 644 F.3d 122, 130 n.7 (2d Cir. 2011) (internal quotation marks and citations omitted).

         In its review of the complaint, the court applies a plausibility standard, which is guided by “two working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the requirement that the court accept as true the allegations in the complaint “is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Second, to withstand a motion to dismiss, the complaint must state a plausible claim for relief. Id. at 679. Determining whether the complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “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.” Id. at 678 (citation omitted). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Even under this standard, however, the court liberally construes a pro se complaint. See Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (“[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest'”) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         B. Facts

         The defendants' motion to dismiss includes arguments addressed to the allegations in counts ten, fourteen, fifteen and seventeen of the fourth amended complaint. Al-Bukhari alleges the following facts related to the remaining counts, which are assumed to be true for the purposes of this motion.

         On June 22, 2015, Al-Bukhari was confined in F-Unit at Garner. See Am. Compl., [ECF No. 66], at 14 ¶ 85. During the evening of June 22, 2015, Al-Bukhari fasted as part of his observance of Ramadan. See Id. Al-Bukhari intended to break his fast at 8:30 p.m. See Id. ¶ 87. Al-Bukhari repeatedly asked Officers Punter, Bernard, and McGoldrich to bring him his Ramadan food tray so that he could break his fast at 8:30 p.m., but they refused to do so because they were engaged in finishing paperwork. See Id. ¶¶ 88-91. Al-Bukhari received his Ramadan food tray at 9:00 p.m. See Id. at 15 ¶ 94.

         On one occasion at some point on or after June 22, 2015 during Correctional Officer Punter's tour of Al-Bukhari's housing unit, Al-Bukhari observed Officer Punter open his “breakfast bag” and turn away from him. See Id. at 15 ¶ 93. When Al-Bukhari received his “breakfast bag” he noticed that someone had poked his or her finger in the peanut butter container and had crumpled the piece of bread. See Id. ¶ 95. Al-Bukhari believes Officer Punter was the person who had “tampered with” the items in his “breakfast bag.” See id.

         On May 22, 2015, Correctional Treatment Officer Taranovich issued a disciplinary ticket to Al-Bukhari for security tampering in connection with Al-Bukhari's alleged attempt to send mail out of the prison facility in an unauthorized envelope. See Id. at 21 ¶ 145. The report accused Al-Bukhari of using a pre-addressed and stamped envelope that his attorney had given him to correspond with another individual who was not an attorney. See Id. at 23 ¶ 153. Al-Bukhari used the same type of envelopes to correspond with this court, the Office of the Claims Commissioner, and with his sister in May, June, and July 2015, but was not disciplined. See Id. ¶ 154.

         On June 3, 2015, Al-Bukhari participated in a disciplinary hearing in connection with the issuance of the disciplinary report for security tampering. See Id. at 22 ¶ 147. Al-Bukhari's advocate failed to assist him in preparing a defense, issued a statement indicating that he should be found guilty of the offense, and did not show up at the hearing. See Id. Lieutenant Eberle was the disciplinary hearing officer. See Id. at 23 ¶ 156. After the hearing, Lieutenant Eberle found Al-Bukhari guilty of the offense with which he had been charged and sanctioned him to sixty days loss of social mail privileges, thirty days loss of recreation and fifteen days of punitive segregation. See Id. at 22 ¶ 149. Lieutenant Eberle did not consider Al-Bukhari's history of serious mental illness in determining the type of sanctions to impose on Al-Bukhari. See Id. at 23 ¶ 156. Dr. Guerrero and Social Workers Kuzebski, John Doe 1, and John Doe 2 did not evaluate Al-Bukhari prior to the disciplinary hearing to determine whether his mental illness played a part in “him having misbehavior or acting out before subjecting him to the disciplinary process.” See Id. ¶ 157. Al-Bukhari was not able to send mail to or receive mail from his family or a clergy member while he was on loss of mail privileges, but he could send mail to and receive mail from attorneys. See Id. at 22 ¶ 150.

         On August 25, 2015, upon Al-Bukhari's return to Garner after participating in a hearing held in a case pending in this court, Lieutenants Hurdle and Camacho subjected him to a strip search. See Id. at 23-24 ¶ 159; at 24 ¶ 163. Those lieutenants indicated that the “big dog” had ordered the strip search. See Id. at 24 ΒΆ 163. ...


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