United States District Court, D. Connecticut
C. Hall United States District Judge.
REVIEW ORDER I. INTRODUCTION
plaintiff, Alberto Nieves (“Nieves”),
incarcerated at the Cheshire Correctional Institution in
Cheshire, Connecticut, has filed a pro se Complaint
(Doc. No. 1) under section 1983 of title 42 of the United
States Code. Nieves sought leave to proceed in forma
pauperis. (Doc. No. 2). On October 1, 2018, the court
granted Nieves' application. (Doc. No. 8).
Complaint names five defendants: the State of Connecticut,
Commissioner Scott Semple, Warden Scott Erfe, Jane Doe, and
John Doe. Nieves contends that the defendants violated his
Fourteenth Amendment rights and discriminated against him
because the state court denied his motion to correct an
section 1915A of title 28 of the United States Code, the
court 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. In reviewing a
pro se complaint, the court must assume the truth of
the allegations, and interpret them liberally to “raise
the strongest arguments [they] suggest[ ].” Abbas
v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although
detailed allegations are not required, the 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.” Twombly, 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)); see also Tracy v. Freshwater, 623 F.3d 90,
101-02 (2d Cir. 2010) (discussing special rules of solicitude
for pro se litigants). However, notwithstanding this
liberal interpretation, a pro se complaint will not
survive dismissal unless the factual allegations meet the
plausibility standard. See, e.g., Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015).
an Hispanic inmate, is currently serving a 45-year sentence
for a crime he committed at age seventeen. See
Compl. (Doc. No. 1) at 11 ¶ 13. On December 4, 2015, he
filed a motion to correct illegal sentence, arguing that his
sentence violated the proscription against mandatory life
imprisonment for persons under age eighteen set forth in
Miller v. Alabama, 567 U.S. 460 (2012).
Id., ¶¶ 8-9. On June 8, 2016, Nieves
attended a hearing on his motion. His motion was consolidated
with similar motions filed by two other inmates, one
Hispanic, the other African-American. Id., ¶
10. The judge denied all motions, stating that 45 years was
not a life sentence and noting the availability of parole.
Id., ¶¶ 11-12.
argues that state lawmakers treat Hispanic and
African-American urban juvenile offenders differently than
white suburban juvenile offenders and contends that
resentencing decisions, like the one in his case, primarily
affect Hispanic and African-American juvenile offenders. For
relief he seeks damages and an order that he be re-sentenced.
contends that the state court refused to resentence him to a
shorter term of imprisonment as required under Supreme Court
law because he is Hispanic. Nieves must assert any claim
affecting the duration of his custody in a petition for writ
of habeas corpus, not a civil rights action. Preiser v.
Rodriguez, 411 U.S. 475, 486 (1973). In addition, any
claim for damages as a result of the failure to resentence
Nieves must be dismissed. The Supreme Court has held that a
state prisoner may not challenge his conviction in a suit for
damages under section 1983, unless his conviction has been
reversed on direct appeal or declared invalid in a collateral
proceeding. Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). Accordingly, any claims that Nieves must be
resentenced to a shorter term of imprisonment or seeking
damages for the failure to resentence him are dismissed
pursuant to section 1915A(b)(1) of title 28 of the United
also includes a general allegation that: “Faced with
the decision of re-sentencing numerous Hispanic and African
American urban juvenile offenders, state law makers engage in
a pattern of racial discrimination.” Compl. (Doc. No.
1) at 11-12 ¶ 13. No. state legislators are named as
defendants, and Nieves alleges only that one state court
judge denied his motion to correct illegal sentence.
See Compl. (Doc. No. 1) at 11 ¶¶ 8-11.
Even if the Doe defendants, who are not further identified or
mentioned in the description of claims, were presumed to be
state legislators, the claims against them would be
dismissed. State legislators are protected by absolute
legislative immunity while carrying out their legislative
functions. Hafer v. Melo, 502 U.S. 21, 29 (1991);
see also U.L. v. New York State Assembly, 592
Fed.Appx. 40, 41 (2d Cir. 2015) (“state legislator
defendants enjoy immunity for their legislative acts”).
the only identified defendants are the State of Connecticut,
Commissioner Semple, and Warden Erfe. Nieves can not state
cognizable claims against any of the three. The Eleventh
Amendment divests the court of subject matter jurisdiction
over any claims for money damages against a state unless the
state has waived this immunity or Congress has abrogated it.
See Kentucky v. Graham, 473 U.S. 159, 169 (1985).
Neither section 1981 nor section 1983 abrogates Eleventh
Amendment immunity. See Bland v. New York, 263
F.Supp.2d 526, 534 (E.D.N.Y. 2003) (citing cases). Nor has
Nieves identified any waiver by the state. Thus, any claims
against the State of Connecticut are dismissed pursuant to
section 1915A(b)2 of title 28 of the United States Code.
although he names Commissioner Semple and Warden Erfe, Nieves
alleges no facts suggesting that either defendant created the
statutes under which he was sentenced or decided his motion.
Accordingly, he fails to allege facts showing that either
defendant was personally involved in his claims. See
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. ...