Green v. Semple

          INITIAL REVIEW ORDER

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Pro se plaintiff Courtney Green, currently incarcerated at Osborn Correctional Institution in Somers, Connecticut, has filed a complaint pursuant 42 U.S.C. § 1983. He names as defendants former Commissioner of the Connecticut Department of Correction Scott Semple, current Commissioner Rollin Cook, Chairperson of the Board of Pardons and Paroles Carleton Giles, Director of Parole and Community Services Richard Sparaco, and Parole Officer Otero (herein “Defendants”). Green alleges that Defendants, state actors, have acted under color of state law to deny him equal protection of the laws by treating him differently from another inmate convicted of the same offense with respect to applying earned credits to advance his parole eligibility date. As a result of this alleged violation, Green seeks damages from the Defendants in their individual capacities.

         I. STANDARD OF REVIEW

         Under section 1915A of Title 28 of the United States Code, the Court must review a prisoner's civil complaint and dismiss any portion thereof that is “frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2). “[T]he district judge's § 1915A review of whether a complaint ‘fails to state a claim upon which relief can be granted' is guided by the Federal Rules of Civil Procedure, as interpreted by [United States] Supreme Court and Second Circuit decisions whose principles have become familiar.” Green v. Martin, 224 F.Supp.3d 154, 160 (D. Conn. 2016).

         A pro se complaint is adequately pled if its allegations, liberally construed, could “conceivably give rise to a viable claim.” Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005). 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 Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (same) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants). “To survive a motion to dismiss, 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 Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The complaint must provide “more than the unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         II. BACKGROUND

         On July 25, 2008, Green was charged with three counts of assault in the first degree in violation of Connecticut General Statutes § 53a-59(a).^[1] On April 21, 2009, he was convicted and sentenced to a term of imprisonment of twenty years. The statute then in effect, Connecticut General Statute § 54-125a, required Green to serve not less than 85% of his sentence before becoming eligible for parole.

         Effective July 1, 2011, § 54-125a was revised by Public Act 11-51, § 25. The new version of § 54-125a provided that an inmate incarcerated after October 1, 1990, who had served not less than 50% of his aggregate sentence, less any risk reduction earned credit (“RREC”) earned under the provisions of section 22 of the Act, was eligible for parole. Section 22, which was codified in Connecticut General Statutes § 18-98e, authorized RREC, and provided that the eligibility of inmates to earn RREC was at the discretion of the Commissioner. A few crimes were identified as exceptions to RREC eligibility in the statute.^[2] However, Green was not convicted of any of the excluded crimes.

         Even though he was convicted of a violent offense, Green was eligible to earn RREC upon satisfaction of certain conditions, including adherence to his inmate offender accountability plan, good conduct, obedience to prison rules, and participation in programs and activities. 2011 Conn. Legis. Serv. P.A. 11-51 (H.B. 6650). In addition to reducing his sentence, an award of RREC advanced Green's parole eligibility date. Doc. 1 (“Complaint”), Statement of Facts, ¶ 5.

         According to the Complaint, on April 25, 2012, Commissioner Semple revised the list of crimes ineligible for RREC. Id., ¶ 6. The newly added crimes included felony murder, arson murder, and aggravated sexual assault in the first degree, which the Court notes were crimes explicitly excluded in the 2011 version of § 54-125a. Id. Assault in the first degree, Green's crime, although a violent felony, was not added to the ineligibility list. Id. Green continued to earn RREC. Id. However, on July 1, 2013, Green received a memo signed by Chairman Giles stating that his RREC would no longer be applied to advance his parole eligibility date. Id., ¶ 7.

         On December 4, 2018, Green spoke with inmate Johnny Johnson (inmate #161684), who also had been convicted of assault in the first degree. Id., ¶ 8. Inmate Johnson was serving an eighteen-year sentence. Id. Neither Green nor Johnson has a gang affiliation or has ever been charged with an assault on staff. Id., ¶ 9. However, inmate Johnson's RREC continues to be applied to accelerate his parole eligibility date, whereas RREC is no longer applied to accelerate said date for Green. Id.

         According to Plaintiff, defendant Sparaco, Director of Parole and Community Services, has instituted a policy that permits only violent offenders who committed their crimes between July 1, 2011, and July 1, 2013, to have their RREC applied to accelerate their parole eligibility dates. Id., ¶¶ 5, 10. Under this policy, Green no longer has “his parole eligibility date accelerated even though [he] still continues to receive RREC.” Id., ¶ 11. Green submitted an Inmate Request, “an inquiry about the misapplication of the law” regarding RREC and his parole eligibility date, to Parole Officer Otero, but he received no response. Id., ¶ 12. Plaintiff thereafter filed an “Administrative Remedy, ” through which he allegedly “exhausted his administrative remedies with no interdepartmental resolution.” Id., ¶ 13. On March 18, 2019, Plaintiff filed this action for “denial of equal treatment amongst similarly situated prisoners” - disparate treatment from that afforded inmate Johnson. Id., ¶¶ 14-15.

         III. DISCUSSION

         In his Complaint, Green sets forth three claims against Defendants: (1) violation of his equal protection rights by treating him disparately from similarly situated inmate Johnson with respect to applying RREC to accelerate his parole eligibility date; Doc. 1, Count One, ¶¶ 16-18; (2) denial of equal protection of the laws by discriminating against Plaintiff in an arbitrary manner, intentionally excluding him from the application of Connecticut state law, Public Act 11-51, §§ 22, 25, while applying that law to similarly situated persons if their offenses were committed between July 1, 2011 and July 1, 2013; id., Count Two, ¶¶ 19-20; and (3) failure by Defendants Semple, Cook, Giles and Sparaco to adequately supervise some or all of their subordinates to ensure that they adhere to constitutional law (i.e., equal protection of laws with respect to similarly situated persons), id., Count Three, ¶¶ 21-22.

         A. Counts One and Two - Violation of Equal Protection

         In both Counts One and Two, Green attempts to assert §1983 claims based on the Equal Protection Clause of the Fourteenth Amendment. In Count One, he asserts that the Defendants have acted under color of state law to violate his right to equal protection of the laws by “intentionally treating [him] disparately from Johnny Johnson” under Connecticut state law even though they are similarly situated inmates. Doc. 1, ¶ 18. In Count Two, Green alleges that Defendants “discriminated against [him] in an arbitrary manner by intentionally excluding [him] from statutory laws of the State of [Connecticut], ” Public Act 11-51, §§ 22 and 25. Id., ¶ 20. Therefore, in both “equal protection” counts, Plaintiff alleges that Defendants have denied him equal protection of the law by applying RREC to ...