Pena v. Semple

          INITIAL REVIEW ORDER

          Kari A. Dooley, United States District Judge.

         Preliminary Statement

         Plaintiff, James Pena (“Pena”), currently confined at MacDougall-Walker Correctional Institution in Suffield, Connecticut, filed this complaint pro se under 42 U.S.C. § 1983. Pena asserts claims for punishment as a pretrial detainee in violation of the Fourteenth Amendment, an unnecessary lack of privacy in violation of the Fourth Amendment, and denial of adequate access to the courts in violation of the Sixth Amendment. Pena names four defendants: Scott Semple, ^[1]John Aldi, A. Santiago, and Miaga. Pena seeks damages and injunctive relief. The complaint was received on February 22, 2019, and Pena's motion to proceed in forma pauperis was granted on February 27, 2019.

         Standard of Review

         Under 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. Id. 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). see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants). 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.

         Allegations

         At all times relevant to this action, Pena was a pretrial detainee. In late 2013, while Pena was previously incarcerated, he was re-designated as a member of the Security Risk Group (“SRG”) Blood based on a composition book containing fictitious rap songs using street slang. Correctional officials determined that the street slang constituted “gang moniker or gang languages.” Doc. No. 1, ¶ 17. Pena disputes the validity of the re-designation because the word “language” was not added to the definition of the offense of SRG Affiliation until 2018. Pena served the remainder of his sentence in the SRG Program. He was discharged from custody on January 28, 2015.

         In October 2017, Pena was arrested and sent to New Haven Correctional Center. He was immediately separated from general population inmates and assigned to a restrictive housing unit. Pena was handcuffed when he left his cell, strip searched, denied telephone access, forced to eat in his cell, limited to three showers per week and two changes of clothes, and denied visits.

         Pena was designated a Blood and transferred to an SRG block at Corrigan Correctional Institution (“Corrigan”) because he had not completed the SRG Program before his release in 2015. He was not given a hearing before his re-designation and transfer.

         At Corrigan, Blood members tried to extort payment from Pena and told him he could not live among them when he refused to pay. Pena told the defendants that his life was in danger because he was no longer an SRG member and requested placement in protective custody. Pena was placed in restrictive housing after he was assaulted by a Blood member for refusing to pay the extortion money.

         Pena received a disciplinary report. He again asked to be transferred to protective custody. Instead, “without disposition, ” he was sent to the SRG Program in the Walker building at MacDougall-Walker Correctional Institution. Doc. No. 1, ¶ 30. In the SRG Program, Pena is permitted only three phone calls per week. This limits his ability to obtain witnesses in his favor, prepare his defense with his attorney, prepare for sentencing, and post bond. Pena is subject to forfeiture of Risk Reduction Earned Credit and is ineligible for community release.^[2] Only immediate family members are permitted to visit him. Pena is housed with convicted inmates. He is permitted only three showers per week, is strip searched every time he leaves his cell, and denied access to a law library.

         Pena submitted a grievance complaining that he had inadequate access to his attorney because of the restrictions on personal phone calls and the limitation on legal calls and an unnecessary lack of privacy because of the excessive body cavity searches. He received no response. On January 2, 2019, Pena submitted an inmate request to the four defendants describing his conditions of confinement and claiming that his SRG placement as a pretrial detainee was unconstitutional. No. defendant responded. Pena submitted an inmate request to defendant Miaga seeking a transfer. Defendant Miaga did not respond.

         Defendant Aldi told Pena that he was going to designate Black P Stone members as Bloods and did not care whether Black P Stone was on the SRG list or Watch Group list or whether it was a subgroup of the Bloods. Although he does not state that he is a member of Black ...