Velez-Shade v. Population Management

          INITIAL REVIEW ORDER

          JANET C. HALL UNITED STATES DISTRICT JUDGE.

         The plaintiff, Orlando Velez-Shade, Jr. (“Velez-Shade”), is currently incarcerated at MacDougall-Walker Correctional Institution (“MacDougall-Walker”). He initiated this action by filing a civil rights complaint against Population Management, Director of Security Antonio Santiago, Security Risk Group (“SRG”) Coordinator John Aldi, District Administrator Quiros, Warden Rodrigues, Captain Lizon, Lieutenant Alexander, Hearing Officer Prior, Correctional Officers Betances, Clark, Richards and Rodriguez and Mailroom Officer DeJesus.

         Velez-Shade subsequently sought leave to amend his Complaint to add new allegations against Director Santiago. On February 5, 2019, the court granted Velez-Shade thirty days to file an amended complaint. Velez-Shade chose not to file an amended complaint within the time specified. For the reasons set forth below, the Complaint is dismissed in part.

         I. STANDARD OF REVIEW

         Pursuant to section 1915A(b) of title 28 of the United States Code, the court must review prisoner civil complaints against governmental actors and dismiss any portion of a complaint that is “frivolous, malicious, or 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(b). This standard of review “appl[ies] to all civil complaints brought by prisoners against governmental officials or entities regardless of whether the prisoner has paid [a] filing fee.” Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004) (internal quotation marks and citation omitted).

         Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although detailed allegations are not required, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). A complaint that includes only “‘labels and conclusions, ’ ‘a formulaic recitation of the elements of a cause of action’ or ‘naked assertion[s]’ devoid of ‘further factual enhancement, ’” does not meet the facial plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts still have an obligation to interpret “a pro se complaint liberally, ” a complaint must still include sufficient factual allegations to meet the standard of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).

         II. FACTS

         On June 16, 2018, Velez-Shade was housed in Building 4 at Carl Robinson Correctional Institution. See Complaint (“Compl.”) (Doc. No. 1) at 6 ¶ 1.^[1] As Velez- Shade walked to the dining hall, he became involved in a physical altercation with two other inmates. See id. at 13. Correctional Officer Richards was present during the altercation but waited almost two minutes to intervene. See id. at 6 ¶ 3. Other correctional officers arrived at the scene, detained Velez-Shade, and escorted him to the restrictive housing unit (“RHU”). See id. at 7 ¶ 4. Velez-Shade remained in the RHU until June 22, 2018. Id. at 7 ¶ 5. On that date, Velez-Shade completed serving his sanction of seven days of confinement in punitive segregation and received other sanctions. See id. at 7 ¶ 5.

         Before Velez-Shade was released from the RHU, Lieutenant Alexander issued him a disciplinary report for security risk group affiliation. See id. at 7 ¶ 6. The disciplinary report accused Velez-Shade of having been involved in a four-on-one altercation and included an unsupported allegation that the Department of Correction had “tracked [Velez-Shade] for an extended period of time . . . as an active Crip member.” See id. at 13. Correctional Officers Clark and Betances investigated the disciplinary report. See id. at 7 ¶ 8.

         On June 26, 2018, Velez-Shade appeared at a hearing with his advocate, Correctional Officer Rodriguez. See id. at 7 ¶ 9. Correctional Officers Clark and Betances were present at the hearing, and Officer Clark presented information pertaining to the investigation of the disciplinary charge. See id. at 7-8 ¶¶ 10-11. Lieutenant Prior refused to permit Velez-Shade to present his views either orally or in writing and would not let Velez-Shade review the source of information statement that was the basis of the issuance of the disciplinary report. See id. at 8 ¶¶ 12, 15-16. Lieutenant Prior stated that Velez-Shade was acting as a gang member because he had participated in the altercation with other inmates on June 16, 2018. See id. at 8 ¶ 17. Lieutenant Prior found Velez-Shade guilty of being affiliated with a security risk group and designated him as a security risk group member. See id. at 9 ¶ 21.

         From June 16, 2018, to June 29, 2018, Velez-Shade was confined in the restrictive housing unit at Carl Robinson. See id. at 9 ¶ 23. He was not permitted to participate in outside recreation and his cell was illuminated by a bright light every day and night. See id. at 9 ¶¶ 23-25. He was unable to get enough sleep which caused him to experience “crucial symptoms of [his] P.T.S.D. as well as his bipolar one.” See id. at 9 ¶ 25. He lost weight and muscle mass during his confinement in the restrictive housing unit because he could not exercise regularly. See id. at 9 ¶ 26.

         On June 29, 2018, prison officials transferred Velez-Shade to Northern Correctional Institution (“Northern”) to be placed in the security risk group program. See id. at 9 ¶ 27. Mental health officials did not clear Velez-Shade for placement at Northern, and the Security Risk Group Review Committee did not review him for phase placement prior to his transfer. See id. at 9-10 ¶ 27-29.

         On July 1, 2018, Velez-Shade appealed Lieutenant Prior’s finding of guilt as to charge of security risk group affiliation. See id. at 10 ¶ 32. On August 1, 2018, District Administrator Quiros denied the appeal and found no reason to modify the decision of the hearing officer. See id. at 10 ¶ 35.

         On August 3, 2018, Director of Security Santiago informed Velez-Shade that there were no documents responsive to his Freedom of Information Act request pertaining to the decision to designate him as an affiliated security risk group member. See id. at 10 ¶ 38. On October 5, 2018, Director Santiago informed Velez-Shade that he would remain in the security risk group program. See id.

         On August 8, 2018, Velez-Shade sent a letter to his aunt indicating that his due process rights had been violated and requested that she get him legal assistance. See id. at 11 ¶ 39. Officials at Northern censored Velez-Shade’s outgoing mail without notification. See id. at 11 ¶ 40.

         During his confinement at Northern, prison officials strip-searched Velez-Shade every time he left his cell and required him to wear handcuffs behind his back during recreation. See id. at 11 ¶ 1. Velez-Shade could not exercise in restraints and the restraints caused pain in his shoulders. See id. at 11 ¶¶ 2-3. Captain Lizon and Warden Rodrigues required Velez-Shade to exercise outdoors during inclement weather. See id. at 16. Velez-Shade was bitten by insects during recreation because he could not swat them away. See id. at 11 ¶ 6. When it was raining, Velez-Shade became soaking wet and caught a cold. See id. at 12 ¶ 7.

         Prison officials required Velez-Shade to wear handcuffs, leg irons, and a belly chain connecting the handcuffs and leg irons when he made telephone calls to his family members. See id. at 12 ¶ 9. The restraints forced him to crouch down in an uncomfortable and painful position during his thirty-minute telephone calls. See id. at 12 ¶¶ 10-12.

         Between October 8 and 10, 2018, Velez-Shade was confined in a cell with a toilet that was backed up with urine and fecal matter from the cell next door. See id. at 12 ¶ 13. Captain Lizon and Warden Rodrigues required him to remain in the cell for forty hours before moving him to a new cell. See id. at 12 ¶¶ 13–14; id. at 16-17.

         III. DISCUSSION

         Velez-Shade claims that the defendants violated his rights under the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and his rights under Article First, sections `4, 5, 8, 9, and 20 of the Connecticut Constitution. He sues the defendants in both their individual and official capacities.

         A. Population Management and SRG Coordinator Aldi

         Velez-Shade has named “Population Management” and SRG Director Aldi as defendants, but asserts no factual allegations against either defendant. The State of Connecticut Department of Correction website describes “Offender Classification and Population Management” as a “unit” that “coordinates overall offender classification efforts and is responsible for the assignment of offender movement throughout the entire infrastructure of the Department.” See Connecticut State Department of Correction, Offender Classification and Population Management, available at https://portal.ct.gov/DOC/Org/Offender-Classification-and-Population-Management. Velez-Shade does not otherwise refer to the Offender Classification and Population Management unit other than in the caption and description of parties. Thus, he has not alleged that the Offender Classification and Population Management unit has violated his federally or constitutionally protected rights. Furthermore, a unit within the Department of Correction is not a person subject to liability under section 1983. See Torres v. UConn Health, No. 3:17-CV-00325 (SRU), 2017 WL 3737945, at *1 (D. Conn. Aug. 29, 2017) (dismissing claims against the Department of Correction Correctional Transportation Unit because such entities are not “persons” within the meaning of section 1983). All claims against Population Management are dismissed. See 28 U.S.C. § 1915A(b)(1).

         Velez-Shade does not mention SRG Coordinator Aldi in the body of the Complaint. In the section of the Complaint describing his legal claims, Velez-Shade contends that “Aldi and Santiago used readymade langue and violated my rights by failing to correct the misconduct and encouraging the continuation of the misconduct of all defendants.” Compl. at 16. Velez-Shade does not allege that he wrote to or otherwise contacted Aldi or that Aldi wrote to or spoke to him in connection with his placement in the security risk group program. Thus, although he contends that Aldi violated his due process rights in connection with his placement in the program, there are no facts alleged to support this contention. Accordingly, the claim against SRG Director Aldi is dismissed. See 28 U.S.C. § 1915A(b)(1).

         B. Official Capacity Claims – Remaining Defendants

         Velez-Shade seeks compensatory and punitive damages and a declaration that the defendants violated his federal constitutional rights. The Eleventh Amendment to the United States Constitution bars claims for monetary damages against a state actor acting in his official capacity, unless there is a waiver of this immunity by statute or the state consents to suit. See Kentucky v. Graham, 473 U.S. 159, 169 (1985).

         There are no allegations that the State of Connecticut has consented to be sued for claims brought against the defendants under section 1983. Furthermore, section 1983 was not intended to override a state’s sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 342 (1979) (holding that section 1983 does not override a state’s Eleventh Amendment immunity). Thus, to the extent that Velez-Shade seeks punitive and compensatory damages from the defendants in their official capacities, such a request for relief is barred by the Eleventh Amendment. Accordingly, the claims for monetary damages against the defendants in their official capacities are dismissed. See 28 U.S.C. § 1915A(b)(2).

         Velez-Shade seeks a declaration that the defendants violated his federal rights. Declaratory relief serves to “settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights or a disturbance of the relationships.” Colabella v. American Institute of Certified Public Accountants, No. 10-cv-2291(KAM)(ALC), 2011 WL 4532132, at *22 (E.D.N.Y. Sept. 28, 2011) (citing Beacon Const. Co., Inc. v. Matco Elec. Co., Inc., 521 F.2d 392, 397 (2d Cir. 1975)). Declaratory relief operates in a prospective manner to allow parties to resolve claims before either side suffers great harm. See In re Combustion Equip. Assoc. Inc., 838 F.2d 35, 37 (2d Cir. 1988).

         A party may seek prospective injunctive and declaratory relief against state officials acting in violation of federal law. See Ex Parte Young, 209 U.S. 123, 155-56 (1908). The Eleventh Amendment, however, precludes requests for declaratory or injunctive relief for past violations of federal law. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (holding that Eleventh Amendment “does not permit judgments against state officers declaring that they violated federal law in the past”); Green v. Mansour, 474 U.S. 64, 68 (1985) (“We have refused to extend the reasoning of Young, however, to claims for retrospective relief.”) (citations omitted).

         The allegations in the Complaint relate to the plaintiff’s confinement at Carl Robinson from June 16, 2018 to June 29, 2018, and Northern from June 29, 2018 to October 10, 2018. Velez-Shade was incarcerated at MacDougall-Walker when he filed this action and remains at MacDougall-Walker. A request for a declaration that the defendants violated Velez-Shade’s federal constitutional rights prior to October 11, 2018 cannot be properly characterized as “prospective” because Velez-Shade does not allege how such relief would remedy a future constitutional violation by the defendants. Thus, the request seeking declaratory relief for past constitutional violations is barred by the Eleventh Amendment. See Green, 474 U.S. at 71-73 (holding that Eleventh Amendment bars retrospective declaratory judgment that state actors violated federal law absent allegation of ongoing violation). The request seeking declaratory relief against the remaining defendants is dismissed. See 28 U.S.C. § 1915A(b)(1).

         C. First Amendment – Mail Interference

         Velez-Shade alleges that, on one occasion in August 2018, he attempted to send a letter to his aunt describing how his “due process was violated” and also asking his aunt to secure legal assistance for him. Compl. at 11 ¶ 39. He claims that Mailroom Officer DeJesus censored his correspondence to his aunt. See id. at 11 ¶ 40. Velez-Shade did not receive a rejection notice or an explanation for the decision to censor the letter. See id.

         The First Amendment protects an inmate’s right of access to the courts and access to the free flow of incoming and outgoing mail. See Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citing Heimerle v. Attorney General, 753 F.2d 10, 12-13 (2d Cir. 1985)). Prison officials may regulate the right to receive and send non-legal mail if the restrictions they employ are “reasonably related to legitimate penological interests.” Thornburgh v. Abbott, 490 U.S. 401, 409 (1989) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). To state a First Amendment claim related to interference with incoming or outgoing non-legal mail, a prisoner must allege that officials engaged in “a pattern or practice of interference” without a “legitimate penological” justification. Thomas v. Washburn, No. 13-CV-303V(F), 2016 WL 6791125, at *2-3 (W.D.N.Y. Sept. 7, 2016) (“[T]hree interferences with Plaintiff's out-going mail as alleged by Plaintiff fails to establish an actionable pattern or practice sufficient to state a claim for a First Amendment mail violation.”), report and recommendation adopted, No. 13-CV-303V(F), 2016 WL 6778794 (W.D.N.Y. Nov. 16, 2016).

         There are no factual allegations to plausibly suggest that the censorship of the letter addressed to Velez-Shade’s aunt was part of a pattern or practice of interference with mail. Rather, the interference with mail occurred on one day. Nor has Velez-Shade alleged that he suffered any injury due to the fact that his letter did not reach his aunt. He does not allege that he was unable to pursue a legal action or have access the courts. Nor does he allege that he could not reach his aunt by telephone. Approximately two months after attempting to send a letter to his aunt regarding alleged due process violations by prison officials, Velez-Shade filed this action. Accordingly, the First Amendment claim that ...