United States District Court, D. Connecticut
INITIAL REVIEW ORDER
C. HALL UNITED STATES DISTRICT JUDGE.
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.
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.
STANDARD OF REVIEW
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
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)
16, 2018, Velez-Shade was housed in Building 4 at Carl
Robinson Correctional Institution. See Complaint
(“Compl.”) (Doc. No. 1) at 6 ¶
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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
Population Management and SRG Coordinator Aldi
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
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. §
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).
Official Capacity Claims – Remaining
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
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.
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).
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).
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. §
First Amendment – Mail Interference
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
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).
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