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Conquistador v. Adimitis

United States District Court, D. Connecticut

December 5, 2018



          Michael P. Shea United States District Judge

         The plaintiff, Jean K. Conquistador, is confined at the Osborn Correctional Institution in Somers, Connecticut. On July 31, 2018, the plaintiff filed a complaint under 42 U.S.C. § 1983 asserting First, Eighth, and Fourteenth Amendment claims against Correctional Lieutenant Adimitis. On August 1, 2018, the court granted the plaintiff leave to proceed in forma pauperis. On August 15, 2018, after reviewing the complaint, the court dismissed the Eighth Amendment claim pursuant to 28 U.S.C. § 1915A(b)(1) and directed the plaintiff to file a response setting forth any attempts that he had made, prior to filing this action, to exhaust available administrative remedies, as to the Fourteenth Amendment failure to protect/deliberate indifference to safety claim and the First Amendment retaliation claim, by using the Department of Correction's grievance procedures set forth in Administrative Directive 9.6. See Initial Review Order (“IRO”), ECF No. 10.

         On August 28, 2018, the plaintiff filed a partial response to the court's IRO. See Response, ECF No. 13. On September 7, 2018, September 24, 2018, and October 16, 2018, the plaintiff filed supplemental responses to the court's IRO. See Responses, ECF Nos. 13, 14, 18.

         The plaintiff has also filed two motions to amend the complaint and a motion for leave to exhaust administrative remedies. For the reasons set forth below, the first motion to amend will be granted, the second motion to amend and the motion to exhaust remedies will be denied, and complaint will be dismissed.

         I. First Motion to Amend [ECF No. 16]

         The plaintiff seeks to amend the complaint to correct the spelling of the defendant's last name. The plaintiff has attached a page from a prison incident report signed by the defendant which reflects that the defendant's last name is spelled Adamaitis, not Adimitis. See Mot. Amend. at 5.

         Because the defendant has not yet filed a responsive pleading or motion addressed to the complaint, the plaintiff may amend his complaint once as a matter of right without seeking the court's permission to file an amended complaint. See Rule 15(a)(B), Fed.R.Civ.P. (permitting a party to “amend its pleading once as a matter of course . . . if the pleading is one to which a responsive pleading is required, [either] 21 days after service of a responsive pleading or 21 days after service of a motion” to dismiss, for more definite statement or to strike, “whichever is earlier.”). Thus, the court will grant the plaintiff's motion to amend the spelling of the defendant's last name. In accordance with this order, the Clerk shall terminate Correctional Lieutenant Adimitis as a defendant and add Correctional Lieutenant Adamaitis as a defendant.

         II. Second Motion to Amend [ECF No. 17]

         The plaintiff seeks leave to add Correctional Counselor Schaffer as a defendant. The plaintiff claims that Counselor Schaffer is an administrative remedies coordinator at Hartford Correctional Center (“Hartford Correctional”) and that she improperly returned many of his grievances without disposition.

         Under Rule 15(a)(2), Fed. R. Civ. P., “[t]he court should freely” grant leave to amend “when justice so requires.” Id. The court considers such factors as undue delay, bad faith, dilatory motive, undue prejudice, and futility of the amendment in assessing whether to permit a party to file a second amended pleading. See Foman v. Davis, 371 U.S. 178, 182 (1962).

         As a preliminary matter, when a plaintiff seeks to amend to add more defendants, a court should consider the requirements of permissive joinder under Rule 20(a) of the Federal Rules of Civil Procedure. See Orakwue v. City of New York, No. 11-CV-6183, 2013 WL 5407211, at *8 (E.D.N.Y. Sept. 25, 2013) (“Whether a plaintiff may join separate individual defendants in one lawsuit is governed by Fed.R.Civ.P. 20(a)(2).”). Rule 20(a)(2), Fed.R.Civ.P. permits joinder of claims against multiple defendants only if two criteria are satisfied: (1) the claims “aris[e] out of the same transaction, occurrence, or series of transactions and occurrences;” and (2) “any question of law or fact common to all defendants will arise in the action.” The allegations that the plaintiff seeks to assert against Correctional Counselor Schaffer regarding the processing of grievances are not related to the allegations of deliberate indifference to safety and retaliation that are asserted in the complaint against Correctional Lieutenant Adamaitis. Thus, the addition of Correctional Counselor Schaffer as a defendant is not warranted under Rule 20(a)(2) because the claim against her does not arise out the same transaction or occurrence from which the claims against Correctional Lieutenant Adamaitis arise.

         Furthermore, the claim against Correctional Counselor Schaffer does not have merit and it would be futile to permit the plaintiff to add her as a defendant. The Second Circuit has held that neither state directives nor “state statutes ... create federally protected due process entitlements to specific state-mandated procedures.” Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003). Thus, allegations that a prison official violated the procedures set forth in a state's administrative remedy program that is applicable to prisoner grievances do not state a claim of a violation of an inmate's constitutional rights. See Swift v. Tweddell, 582 F.Supp.2d 437, 445- 46 (W.D.N.Y. 2008) (“It is well established [] that inmate grievances procedures are undertaken voluntarily by the states, that they are not constitutionally required, and accordingly that a failure to process, investigate or respond to a prisoner's grievances does not in itself give rise to a constitutional claim.”) (collecting cases); Fernandez v. Armstrong, No. 3:02-CV-2252(CFD), 2005 WL 733664, at *9 (D. Conn. Mar. 30, 2005) (“This district has previously held that failure of a correctional official to comply with the institutional grievance procedures [set forth in Administrative Directive 9.6] is not cognizable in an action filed pursuant to 42 U.S.C. § 1983, unless the action caused the denial of a constitutionally or federally protected right.”). In addition, “prisoners do not have a due process right to a thorough investigation of grievances.” Tafari v. McCarthy, 714 F.Supp.2d 317, 347 (N.D.N.Y. 2010) (citing Torres v. Mazzuca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y. 2003) (“The corrections officers' failure to properly address [plaintiff's] grievances by conducting a thorough investigation to his satisfaction does not create a cause of action for denial of due process because [plaintiff] was not deprived of a protected liberty interest.”)).

         To the extent that the plaintiff claims that Correctional Counselor Schaffer did not properly respond to or process his grievances and grievance appeals in accordance with Department of Correction Administrative Directive 9.6, such a claim does not rise to the level of a violation under the Fourteenth Amendment. See Brown v. Graham, 470 Fed.Appx. 11, 13 (2d Cir. 2012) (“Brown's argument that he has a federally-protected liberty interest in the state's compliance with its own prison grievance procedures is meritless.”) Accordingly, it would be futile to permit the plaintiff to add Correctional Counselor Schaffer as a defendant. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (a district court need not grant leave to amend when amendment would be “futile”).

         Accordingly, for the reasons stated above, the motion for leave to amend to add Correctional Counselor ...

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