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Allah v. Sample

United States District Court, D. Connecticut

January 4, 2019

SCOTT SEMPLE, et al. Defendants.


          Kari A. Dooley United States District Judge.

         Preliminary Statement of the Case

         On May 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.

         On 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.

         Standard of Review

         A party 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. Conn. 1999)).

         To 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.

         “Although 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)).


         The 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).[1] 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 ¶ 47.
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; ...

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