United States District Court, D. Connecticut
MEMORANDUM OF DECISION RE: MOTION TO DISMISS
A. Dooley United States District Judge.
Statement of the Case
25, 2018, the plaintiff, King Knowledge Born Allah, a
prisoner in the custody of the Connecticut Department of
Correction (“DOC”), filed a complaint pro
se under 42 U.S.C. § 1983 against several DOC
officials for violating his constitutional rights. After
initial review, the court, Meyer, J., permitted the
plaintiff's Fourteenth Amendment due process claim to
proceed against four defendants: Correction Officer Kelly,
Correction Officer Cossette, Correction Officer Pacelli, and
Lieutenant Bare. The court also permitted the plaintiff's
First Amendment retaliation claim to proceed against two
other defendants: Director of Security Christine Whidden and
Security Risk Group (“SRG”) Coordinator John
Aldi. The court ordered service on all defendants with the
exception of defendants, Kelly and Bare, who could not be
identified by the DOC based upon the description contained in
the plaintiff's complaint. The court therefore directed
the plaintiff to provide additional identifying information
for these two defendants by August 28, 2018. Having received
nothing, the court again directed the plaintiff to submit
additional information on defendants Bare and Kelly, which
the defendant did on November 14, 2018.
October 12, 2018, the defendants filed the instant motion to
dismiss all claims against them for a variety of reasons.
Defendants Kelly and Bare seek dismissal under Federal Rule
of Civil Procedure 12(b)(5) for insufficient service of
process insofar as the plaintiff never properly identified
Kelly and Bare. Defendant Whidden seeks dismissal under
Fed.R.Civ.P. 12(b)(5) because no return of service has been
filed with respect to Whidden. Defendants Aldi and Whidden
seek dismissal of the First Amendment retaliation claim under
Federal Rule of Civil Procedure 12(b)(6) because the
plaintiff has failed to sufficiently allege that Aldi and
Whidden were personally involved in the events giving rise to
his claim or that retaliation was a substantial or motivating
factor in their alleged conduct. Finally, all defendants
contend that they are entitled to qualified immunity on the
plaintiff's claims. The plaintiff filed an opposition to
the motion to dismiss on November 20, 2018 in which he claims
that (1) he never received the court's orders directing
him to submit additional identifying information for
defendants Kelly and Bare, (2) he has no access to a law
library or legal resources, (3) the court's Initial
Review Order permitting his constitutional claims to proceed
“speaks for itself, ” and (4) his allegations,
construed liberally, are sufficient for his claims to proceed
to discovery. For the following reasons, the court will GRANT
in part and DENY in part the defendants' collective
motion to dismiss.
may move to dismiss a complaint for insufficient service of
process. Fed.R.Civ.P. 12(b)(5); Rzayeva v. U.S., 492
F.Supp.2d 60, 74 (D. Conn. 2007). The motion to dismiss must
be granted if the plaintiff fails to serve a copy of the
complaint and summons on the defendants under Federal Rule of
Civil Procedure 4. Rzayeva, 492 F.Supp.2d at 74.
“Once validity of service has been challenged, it
becomes the plaintiff's burden to prove that service of
process was adequate.” Id. (quoting Cole
v. Aetna Life & Cas., 70 F.Supp.2d 106, 110 (D.
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when . . . plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant[s] [are] liable for the
misconduct alleged.” Id. The plausibility
standard is not a probability requirement; the complaint must
show, not merely allege, that the plaintiff is entitled to
relief. See id.
all allegations contained in the complaint are assumed to be
true, this tenet is ‘inapplicable to legal
conclusions.'” LaMagna v. Brown, 474
Fed.Appx. 788, 789 (2d Cir. 2012) (quoting Ashcroft,
556 U.S. at 678); see also Amaker v. New York State Dept.
of Corr. Servs., 435 Fed.Appx. 52, 54 (2d Cir. 2011)
(same). Accordingly, the court is not “bound to accept
conclusory allegations or legal conclusions masquerading as
factual conclusions.” Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon
v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal
quotation marks omitted)). Consequently, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). This is true whether the plaintiff has
counsel or appears pro se. Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010). However,
“[w]here . . . the complaint was filed pro se,
it must be construed liberally with ‘special
solicitude' and interpreted to raise the strongest claims
that it suggests.” Hogan v. Fischer, 738 F.3d
509, 515 (2d Cir. 2013) (quoting Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011)).
court reiterates the plaintiff's allegations as contained
in the Initial Review Order:
Plaintiff is a devout member of the Nation of Gods and Earths
(“NOGE”) religion, commonly referred to as the
Five Percenters. Compl. ¶ 21. In a previous lawsuit, the
DOC agreed to recognize the NOGE as a religious group and
remove it from its list of Disruptive Groups. Settlement
Agreement (DE#89-1), Colon v. Dzurenda, No.
3:14-cv-461 (SALM). On September 20, 2015, while
confined at Cheshire, plaintiff became involved in a physical
fight with other inmates. Compl. ¶ 24. He was taken to a
restrictive housing unit, issued a disciplinary report for
fighting, and was placed on administrative segregation
pending the outcome of the disciplinary action. Id.
at ¶¶ 25-26. Two days later, plaintiff pleaded
guilty to the disciplinary charge and received as sanctions
seven days of punitive segregation, thirty days loss of
commissary, thirty days loss of recreation, and ten days loss
of good time credit. Id. at ¶ 27.
On September 25, plaintiff received a separate disciplinary
report for SRG affiliation and was placed on administrative
segregation status pending the outcome. Compl. ¶¶
28-29. The report alleged that the fight in which plaintiff
was involved was SRG-related because it involved known prison
gangs, the Crips and the Latin Kings. Id. at ¶
29. Plaintiff wrote a statement contesting the allegations in
the report, arguing that (1) he was a NOGE member, (2) he was
not affiliated with either prison gang, and (3) the fight on
September 20 was not gang related. Id. at ¶ 31.
Plaintiff also requested to interview a number of DOC
officials in preparation of his defense to the disciplinary
charge. Id. Although plaintiff acknowledged that he
had been a Latin Kings member many years ago, he contended
that the reporting officer, Correction Officer Verdura, had
no evidence that he was an active Latin Kings member or that
the fight on September 20 was gang related. Id.
On September 30, Correction Officer Kelly interviewed
plaintiff as part of the disciplinary report investigation.
Compl. ¶ 32. During the interview, plaintiff gave Kelly
his written statement and requested interviews with other DOC
officials who could testify as witnesses in his defense.
Id. at ¶ 33. When he asked Kelly why he was
being charged with SRG affiliation, Kelly stated that he had
nothing to do with the charge and that it was coming from
Director Whidden and SRG Coordinator Aldi. Id. Both
Aldi and Whidden were defendants in plaintiff's previous
lawsuit, Colon v. Dzurenda, No. 3:14-cv-461.
Id. At the conclusion of the interview, Kelly
checked off a box on his form indicating that plaintiff had
not requested witnesses, even though plaintiff had clearly
stated his intention to present witnesses in his defense.
Id. at ¶ 34. Later that day, plaintiff met with
Correction Officer Pacelli, who was assigned as
plaintiff's advocate for the disciplinary charge. Compl.
¶ 35. Plaintiff gave Pacelli his written statement.
Id. at ¶ 36.
Plaintiff's disciplinary hearing for the SRG affiliation
report took place on October 8, 2015. Compl. ¶ 37.
Pacelli did not, as plaintiff requested, take statements from
any of his potential witnesses or advocate on his behalf.
Id. at ¶ 38. Lieutenant Bare and Correction
Officer Cossette, who were also present at the hearing, did
not interview or take statements from any of plaintiff's
requested witnesses. Id. The officials only
permitted plaintiff to read his own written statement in
support of his defense. Id. Plaintiff was
subsequently found guilty of the disciplinary charge and
classified as a Latin King. Id. at ¶ 39. As
punishment, he received twenty days of punitive segregation,
sixty days loss of commissary, ten days loss of good time
credit, and was assigned to a level-5 security SRG unit for
two years. Id.
Plaintiff immediately appealed the decision, claiming that he
was denied due process at his disciplinary hearing because
the officers refused to let him present witness testimony.
Compl. ¶ 40. He reiterated that he was a member of the
NOGE and was not in any way affiliated with the Latin Kings.
Id. After a month without a response, plaintiff
filed a level-2 appeal of the decision. Id. at
On October 24, plaintiff was transferred out of Cheshire and
placed in the level-5 SRG unit at MWCI. Compl. ¶ 41. A
week later, he wrote a request to his unit manager, Captain
Rivera, complaining about the unit's handcuff restraint
policy because the continuous placement in handcuffs was
causing pain in his shoulders. Id. at ¶ 42;
Pl.'s Ex. 11 (DE#1-11). Shortly thereafter, he submitted
a second request complaining that the recreation cages in the
unit were too small. Compl. ¶ 43; ...