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Cooke v. Jones

United States District Court, D. Connecticut

July 8, 2019

IAN COOKE, Plaintiff,
v.
KIM JONES, et al., Defendants.

          RULING AND ORDER

          Michael P. Shea, United States District Judge

         Plaintiff Ian Cooke, currently incarcerated at the Garner Correctional Institution in Newtown, Connecticut, filed this case under 42 U.S.C. § 1983, arguing that the defendants denied him access to the courts and retaliated against him for engaging in protected speech or conduct.

         On February 21, 2019, the Court filed an Initial Review Order dismissing the complaint in part. ECF No. 12. On February 27, 2019, the plaintiff filed a motion for extension of time to file a motion to amend his complaint, which the Court granted on March 15, 2019. ECF Nos. 13, 17. On March 27, 2019, the plaintiff filed a motion for reconsideration of the dismissal of some of his claims. ECF No. 18. The following day, he filed a motion for leave to file under seal an exhibit to the motion for reconsideration. ECF No. 19. On April 1, 2019, the plaintiff filed his motion to amend accompanied by a proposed amended complaint, ECF No. 23, and on April 11, 2019, sought leave to file a supplemental complaint. ECF No. 25. Also pending are the plaintiff's motion for temporary restraining order and preliminary injunction relating to the preservation of evidence, and a motion for entry of default for failure to plead.

         I. Motions for Reconsideration and Leave to File Under Seal

         Motions for reconsideration must be filed and served within seven days from the filing of the decision or order from which relief is sought. D. Conn. L. Civ. R. 7(c)1. The Initial Review Order was filed on February 21, 2019. Thus, the plaintiff had until February 28, 2019 to file a motion for reconsideration. He did not do so. Thus, the motion for reconsideration is denied as untimely filed.

         There was a delay in the plaintiff's receipt of a hard copy of the Initial Review Order. In his motion for extension of time, ECF No. 13, dated February 26, 2019, the plaintiff stated that he had not yet received a copy of the order. In the motion, the plaintiff sought time “to file motion(s) for leave to amend the complaint and/or to re-argue/reconsider from the court.” ECF No. 13 at 1. The plaintiff referred to the 21-day deadline for filing a responsive pleading set forth in Federal Rule of Civil Procedure 12(a) and noted that pro se parties should be permitted leave to amend following issuance of an Initial Review Order. In light of the identified time period, referenced ability to amend, and request to re-argue his claims, the Court considered the motion only as a motion for extension of time to file an amended complaint, and specifically granted only an extension of time to file an amend complaint. ECF No. 17.

         Further, reconsideration is available only if the Court overlooked facts presented in the complaint that would alter the court's decision or made an error of law. “A motion for reconsideration ‘is not a vehicle for relitigating old issues, … securing a rehearing on the merits, or otherwise taking a “second bite of the apple.”'” Gustavia Home, LLC v. Rice, 724 Fed.Appx. 87, 88-89 (2d Cir. 2018) (quoting Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted)). As the plaintiff is attempting to secure a second bite of the apple by rearguing his claims and submitting a document he had, but did not file with his complaint, the motion for reconsideration would be denied even if timely filed. The Court considers the plaintiff's arguments in conjunction with his motion to amend. As the motion for reconsideration is denied, the request to file an exhibit to that motion under seal is denied as moot.

         II. Motions to Amend

         The plaintiff has filed two motions seeking permission to amend. In his first motion, the plaintiff seeks permission to file a Second Amended Complaint to reassert the claims dismissed in the Initial Review Order. In the second motion, the plaintiff seeks to supplement the complaint by adding a state law claim for breach of contract relating to the settlement of another federal lawsuit.

         Federal Rule of Civil Procedure 15(a)(2) provides that the court should freely grant leave to amend when justice so requires. A motion for leave to amend should be granted “[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment[.]” Foman v. Davis, 371 U.S. 178, 182 (1962).

         As with original complaints, the Court must review amended prisoner complaints and dismiss any portion of the amended 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. As it would be futile to permit the filing of an amended complaint that fails to meet this standard, before deciding whether leave to amend should be granted, the Court will review the proposed Second Amended Complaint to ascertain whether the plaintiff alleges facts that would support a cognizable claim not included in the First Amended Complaint.

         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 plausible right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). “A claim has facial plausibility when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). Conclusory allegations are not sufficient. Id. Although courts must interpret a pro se complaint liberally, the complaint will be dismissed unless it includes sufficient factual allegations to meet the standard of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).

         The named defendants in the Second Amended Complaint are: Deputy Warden of Programs and Treatment Kim Jones, Deputy Warden of Operations and interim Warden Denise Dilworth, former Commissioner of Correction Scott Semple, Assistant Attorney General Steven Strom, and current Commissioner Rollin Cook, the same defendants named in the First Amended Complaint. However, the plaintiff filed a motion to substitute current Commissioner Rollin Cook for former Commissioner Semple. As the plaintiff has named defendant Semple only in official capacity as the person able to afford him injunctive relief, the Court granted the motion. The proposed Second Amended Complaint also names former Commissioner Semple only in official capacity. In light of the prior order, former Commissioner Semple will be terminated as a defendant in this action.

         A. Allegations

         1. Background

         Prior to October 2016, there was a law library at Garner Correctional Institution (“Garner”) that carried current Connecticut state reporters and other legal texts and treatises. All inmates at Garner had access to these materials and most volumes were available for “short-term loan.” The legal volumes were in addition to numerous fiction and non-fiction books. ECF No. 23-1, ¶ 10.

         The plaintiff worked as a library clerk at Garner between 2013 and 2016. In April 2016, the full-time librarian retired. The Department of Correction Unified School District #1 operated the library until September 2016. Garner administration had a correctional officer supervise the library for one additional week, then it closed. Id., ¶ 11. Defendants Jones and Dilworth made plans for an alternate use of the space. The library remained closed from October 2016 through June 2017. In March 2017, two non-Department of Correction volunteers offered to supervise the library. Id., ¶ 12. The space was reconfigured and reopened with a reduced collection of books. The warden retired in June 2017 and defendant Dilworth served as interim warden. Id., ¶ 13.

         On July 8, 2015, the state court denied the plaintiff's petition for writ of habeas corpus challenging his conviction. He was appointed a special public defender to appeal the denial. Appointed counsel “refused to file motions to perfect the appellate record and, also, refused to bring viable/valid claims.” Id., ¶ 14. Dissatisfied with appointed counsel's performance, the plaintiff opted to proceed pro se on appeal. In April 2017, the plaintiff filed a petition for writ of mandamus seeking legal research assistance from the Office of the Chief Public Defender or the Department of Correction. Defendant Strom appeared on behalf of the Commissioner of Correction. The petition was denied. Id.

         Connecticut state prisoners are afforded access to the courts through the Office of the Chief Public Defender for criminal matters and Inmates' Legal Aid Program (“ILAP”) for civil matters relating to conditions of confinement. The Office of the Chief Public Defender provides assistance solely through appointment of counsel. ILAP provides general advice and legal assistance but does not represent inmates in court. Some correctional facilities have legal resources, but no facility has a true law library. Osborn Correctional Institution, Manson Youth Institute, and York Correctional Institution have the most extensive collections of legal resources. Id., ¶ 15.

         2. Access to Courts

         Between 2015 and 2016, defendants Jones, Dilworth, and Semple cut funding for Unified School District #1, including funds to hire a librarian. Id., ¶ 17. In March 2017, following the decision to re-open the Garner library, defendants Jones and Dilworth ordered the destruction of the legal materials and texts. Id., ¶ 18. They instructed the volunteer librarians not to retain, obtain, or lend any legal texts. Id., ¶ 19.

         Defendants Jones and Dilworth also have severely restricted inmate access to a typewriter. Typewriters were formerly available in the library/media center. Id., ¶ 20. After April 2016, typewriters were restricted to use in the visiting area. As a result, typewriters could be used only during visiting hours while a counselor was available and for a maximum of one hour per weekday. Inmates were strip-searched after using the typewriter. Id., ¶ 21. All other correctional facilities have a designated typewriter in each housing unit. These typewriters may be used during recreation hours or, depending on the unit, in the cell. Id.

         After he began representing himself in the habeas appeal, and after the Office of the Chief Public Defender denied legal assistance other than appointment of counsel, the plaintiff requested legal assistance from defendants Jones, Dilworth, and Semple, and from ILAP. The defendants stated they would provide no assistance beyond what the public defender or ILAP offered. Id., ¶ 22. When the plaintiff requested access to legal research resources, the defendants stated that they do not transfer inmates among correctional facilities for access to legal resources. Id., ¶ 23. The plaintiff emphasized that he was requesting legal research materials, not legal counsel or advice, and that he was not requesting a transfer because no correctional facility had a true law library. Id., ¶ 24.

         The plaintiff sought to assert a claim that the habeas court had misapplied the standard for ineffective assistance of trial counsel by failing to consider the cumulative effect of trial counsel's deficiencies to establish prejudice. The plaintiff was unable to present this claim because he could not research the application of “cumulative effect” in other jurisdictions. Id., ΒΆ 25. Although the Supreme Court and all federal courts recognize that prejudice can be established by considering the cumulative effect of trial counsel's actions, the state courts have declined to adopt this standard. The plaintiff ...


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