Braun v. Sterno

          INITIAL REVIEW ORDER

          Janet C. Hall United States District Judge

         On June 1, 2018, the plaintiff, Clarence E. Braun III (“Braun”), an inmate currently housed at Osborn Correctional Institution in Somers, Connecticut, filed a complaint pro se pursuant to title 42, section 1983 of the United States Code against seven Connecticut Department of Correction (“DOC”) employees for violating his rights under the First Amendment Free Exercise Clause, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, and the Fourteenth Amendment Due Process Clause. Compl. (Doc. No. 1). The seven defendants are Correction Officers Sterno and McMahon, Captains Valeriano and Nunez, Deputy Warden Laffargue, Warden Erfe, and Commissioner Semple. Braun is suing all seven defendants for monetary, injunctive, and declaratory relief. Id. at ¶ 1. On June 8, 2018, Magistrate Judge William I. Garfinkel granted Braun's motion to proceed in forma pauperis. See Order (Doc. No. 6). For the following reasons, his Complaint is dismissed in part.

         I. STANDARD OF REVIEW

         Pursuant to section 1915A of title 28 of the United States Code, this court must review prisoner civil complaints and dismiss any portion of a 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. Although detailed allegations are not required, a complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).

         II. FACTUAL ALLEGATIONS

         At all times relevant to his Complaint, Braun was incarcerated at Cheshire Correctional Institution (“Cheshire”) in Cheshire, Connecticut. Compl. at ¶ 5. Braun is a devout Native American and was very close with his Elder and spiritual advisor, Tom Flanders. Id. at ¶ 13. The Native American religion requires Braun to carry with him a sacred medicine bag containing objects related to his life experiences and spiritual growth. Id. at ¶ 14. Anything that goes into the medicine bag becomes part of Braun's spiritual growth and was blessed by Flanders. Id. at ¶ 15. Touching or opening the medicine bag by anyone other than Braun, its keeper, is considered a desecration of the bag and the spiritual items contained therein. Id. at ¶ 16.

         In order to respect the religious practices of Native American inmates, the DOC has adopted policies on how staff should handle medicine bags and other sacred items. Id. at ¶ 17. DOC Administrative Directive 10.8, section 16, states that “Native American medicine bags shall not normally be handled by staff. In cases where a medicine bag and/or its contents require examination by staff, staff shall instruct the inmate possessing the medicine bag to empty its contents on to a surface for inspection.” Id. at ¶ 18; Pl.'s Ex. A (Doc. No. 1 at 27). In practice, however, the staff member typically instructs the inmate to place the medicine bag in a sealed envelope, which is later inspected by the Elder. Compl. at ¶ 19. Although an inmate may not refuse inspection of the medicine bag, DOC staff are not to touch the bag or its contents unless there is contraband present. Id. at ¶ 22; Pl.'s Ex. B (Doc No. 1 at 30).

         When grieving the passing of a loved one, it is common practice in the Native American religion for one to cut off a piece of the deceased's hair and place it in his or her medicine bag as a keepsake. Compl. at ¶ 23. When Braun's former Elder and great-grandmother passed away, he placed their hair in his medicine bag and had his new Elder bless it. Id. at ¶ 24. These hairs became the most precious and sacred items in his medicine bag. Id. at ¶ 25.

         On June 28, 2016, Braun was removed from his housing unit at Cheshire and placed in a restrictive housing unit (“RHU”) pursuant to a disciplinary report. Id. at ¶ 26. After arriving at RHU, Correction Officer Sterno packed and inventoried Braun's property, including his medicine bag. Id. at ¶¶ 27-28. Although he had no reason to believe that the bag contained contraband, Sterno personally opened the bag, dumped its contents on the floor, and kicked and stomped on the items. Id. at ¶ 28. Policy required Sterno to either secure the medicine bag in an envelope for inspection by the Elder or instruct Braun to empty the contents on a flat surface for visual inspection. Id. at ¶ 29. Braun believes that Sterno's actions were malicious because he has a disdain for Native American inmates and is the subject of other lawsuits with similar religious claims. Id. at ¶ 30.

         On August 4, 2016, Braun was released from RHU and was approached by another inmate, Richard Nau, who witnessed Sterno dump the contents of the medicine bag on the floor and desecrate them. Compl. ¶ 32; Pl.'s Ex. C (Doc No. 1 at 33). When he retrieved his medicine bag, Braun noticed that several items were missing, including the hair from his Elder and great-grandmother. Compl. at ¶ 33. He immediately wrote to Correction Officer McMahon, Captain Valeriano, and Warden Erfe stating that Sterno had violated his religious freedoms and requesting video surveillance footage from the incident. Id. at ¶ 34; Pl.'s Ex. D (Doc. No. 1 at 35-37). He wrote a similar request to Deputy Warden Laffargue four days later. Compl. at ¶ 35; Pl.'s Ex. E (Doc. No. 1 at 39).

         On August 10 and 11, Braun received written responses from Laffargue and Valeriano directing his request for surveillance footage to Captain Nunez for review. Compl. at ¶¶ 35-36; Pl.'s Ex. E. On August 12, plaintiff wrote a request for the surveillance footage directly to Nunez. Compl. at ¶ 39. He also spoke with Nunez on August 17, about the incident with Sterno. Id. at ¶ 41. Nunez told him that he would speak with Sterno about proper handling of medicine bags and preserve the video from the incident. Id.

         Later that day, Nunez sent a letter to Braun stating that his request to preserve the surveillance footage from June 28 had been “compromised” and “could not be completed.” Id. at ¶ 42; Pl.'s Ex. F (Doc. No. 1 at 41). Although Braun's request was timely made, Nunez explained that the footage was “not available” and there was no way to retrieve it. Compl. at ¶¶ 42-43; Pl.'s Ex. F. Braun found Nunez's response to be “vague, deceitful, and misleading” because the request was timely made and Nunez did not explain why the footage was unavailable. Compl. at ¶¶ 44-45.

         On August 19, at approximately 5:00 p.m., Sterno entered Braun's cell and conducted a “shakedown.”^[1] Id. at ¶ 46. Braun asked Sterno about the packing of his property on June 28, and Sterno admitted to dumping the contents of his medicine bag on the floor and stomping and kicking the items in disarray. Id. Sterno also mentioned that Nunez had disciplined him for his actions. Id. Based on his conversation with Sterno, Braun believed that the “shakedown” of his cell was retaliation for his complaints against Sterno. Id. at ¶ 47.

         On August 22, Braun wrote a response to Nunez's letter asking for clarification on why his request for surveillance footage was “compromised” and “not available.” Compl. at ¶ 48; Pl.'s Ex. 1 (Doc. No. 1 at 46). Braun stated that the footage should have been preserved and that his request was made within the required thirty days of the incident. Compl. at ¶ 48; Pl.'s Ex. 1. Nunez did not respond to Braun's letter. Compl. at ¶ 48. Braun believes that Nunez conspired with McMahon, Valeriano, Erfe, and Laffargue “to deliberately fail to preserve . . . and/or destroy” the footage. Id. at ¶ 49. He wrote to Commissioner Semple regarding the incident and the failure to preserve the footage, but Semple did not respond. Id. at ¶ 50.

         Sterno, Valeriano, Laffargue, Erfe, and Semple are all defendants in another lawsuit filed by another Native American inmate at Cheshire regarding religious freedom violations. Id. at ¶ 52; Michalski v. Semple, No. 3:16-cv-2039 (VAB). As a result of the alleged violations in this case, Braun suffers from terrifying nightmares of different ancestors banishing him and cutting off his hair and scalp, which are the most embarrassing and disgraceful actions in the Native American culture. Compl. at ¶ 57. These nightmares cause Braun to suffer from insomnia, tinnitus, and severe headaches. Id.

         III. ...