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Myers v. Semple

United States District Court, D. Connecticut

October 21, 2019

KEVIN A. MYERS, JR., Plaintiff,
SCOTT SEMPLE, et al., Defendants.


          Kari A. Dooley United States District Judge.

         Preliminary Statement

         The plaintiff, Kevin A. Myers, Jr. (“Myers”), commenced this civil rights action asserting claims for violation of his constitutional rights in connection with his Security Risk Group (“SRG”) hearing and classification. Following the Court's, Hall, D.J., initial review, two claims remain, a Procedural Due Process Clause claim and a false accusation claim. Initial Review Order, Doc. No. 9, at 18. The remaining defendants, District Administrator Angel Quiros, Lieutenant Lizon, Lieutenant Richardson, Officer S. Ocasio, and Warden Maldonado (“the Defendants”), filed a motion for summary judgment asserting that Defendants Quiros and Maldonado were not personally involved in the incidents underlying the complaint; Myers did not fully exhaust his administrative remedies; Myers' due process rights were not violated, and the Defendants are protected by qualified immunity. Myers' response was due by June 13, 2019. To date, he has neither filed opposition papers nor sought an extension of time within which to do so.[1] For the reasons that follow, the Defendants' motion is granted.

         Standard of Review

         A motion for summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; see also Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113-14 (2d Cir. 2017). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Nick's Garage, 875 F.3d at 113-14 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Which facts are material is determined by the substantive law. Anderson, 477 U.S. at 248. “The same standard applies whether summary judgment is granted on the merits or on an affirmative defense ….” Giordano v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).

         The moving party bears the initial burden of informing the court of the basis for its motion and identifying the admissible evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He cannot “rely on conclusory allegations or unsubstantiated speculation' but ‘must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (quotation marks and citation omitted). To defeat a motion for summary judgment, the nonmoving party must present such evidence as would allow a jury to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         Although the court is required to read a self-represented “party's papers liberally and interpret them to raise the strongest arguments that they suggest, ” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015), “unsupported allegations do not create a material issue of fact” and do not overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).


         On May 11, 2016, Officer Ocasio was conducting a correspondence review at Osborn Correctional Institution (“Osborn”). Doc. No. 34-22, ¶ 1. He saw a letter written by Myers addressed to Roberto Delgado. The U.S. Post Office had returned the letter to the facility because it had a non-deliverable address. Id., ¶¶ 1-2.

         The letter, dated April 16, 2016, was handwritten. Id., ¶ 4. The salutation was “Dear Iceman.” Correctional officials know a person nicknamed “Iceman” as Robert Delgado, a former inmate and high-ranking member of the Security Risk Group (“SRG”) Los Solidos. Delgado had recently discharged from custody. Id., ¶ 4. A search of the Department of Correction database confirmed that inmate Delgado, a/k/a Iceman, had an affiliation with Los Solidos which was removed in 1999. Id., ¶ 5.

         Officer Ocasio read the letter and perceived admissions by Myers of gang involvement at Osborn. Officer Ocasio contacted Lieutenant Lizon, his supervisor. Lieutenant Lizon read the letter and confirmed Officer Ocasio's determination that the letter contained admissions of gang involvement. Id., ¶ 6.

         In the letter, Myers described his location at Osborn and the inmates with whom he associated. Myers stated that he had followed Delgado's advice and located two inmates, “Figgy” and “Big Figgy, ” at Osborn. The Department of Correction database showed that both inmates were former Los Solidos members whose affiliations were removed in 2000 and 1999, respectively. Id., ¶ 7.

         Renouncing SRG membership and having the SRG affiliation removed while in custody shows that an inmate has completed the Department of Correction gang renunciation program. When an inmate completes this program, he can be transferred to a housing unit with less restrictive conditions. Id., ¶ 8. Lieutenant Lizon is aware that many inmates who renounce SRG membership continue to be active in the gang but do so in a more secretive manner to prevent detection of their activity by correctional staff. Id., ¶ 9.

         Myers wrote that he was handling his responsibilities and he “actually had the ticket block. Seems as though Mafia and you taught me right. You guys made me a leader.” Id., ¶ 10 (quotation marks omitted). Officer Ocasio and Lieutenant Lizon understood this language as an admission that Myers has a leadership position as Block Lieutenant for the Los Solidos in his housing unit. Id., ¶ 11.

         In another part of the letter, Myers described the months he spent with Iceman as “nothing short of pure honor” and he thanked Delgado for his guidance and wisdom. Id., ¶ 12 (quotation marks omitted). Officer Ocasio and Lieutenant Lizon understood this language as Myers thanking Delgado for bringing him into Los Solidos as a member and his feelings about membership in the group. Id.

         Myers also asked Delgado to “write a letter to me [Myers] so that I can show to other brothers who try to take my flames that I have your blessing and that if they have anything to say, that it's dead. I mean you are the GF and anything you say goes.” Id., ¶ 13 (quotation marks omitted). Officer Ocasio and Lieutenant Lizon interpreted this language as referring to Myers' conviction for sexual assault. A person convicted of such a charge generally is not accepted into an SRG and may be terminated from the group. Id., ¶ 14. However, if Myers had Delgado's blessing, other SRG members would respect Delgado's position and not try to terminate Myers' membership. Id., ¶ 17. The reference to GF is short for God Father, the highest rank in the Los Solidos. Delgado a/k/a Iceman is considered one of the founding fathers of SRG Los Solidos. Id., ¶ 15. The reference to brothers is to other Los Solidos members and “try to take my flames” means taking his gang colors or terminating his gang membership. Id., ¶ 16 (quotation marks omitted).

         After reviewing the letter, Lieutenant Lizon contacted the Security Intelligence Division for approval to proceed with Myers' classification as an SRG member. Id., ¶ 18. The Security Intelligence Division had reservations about Myers' membership in the SRG because of his sexual assault conviction and requested additional confirmation of Myers' gang involvement. Id., ¶ 19.

         Lieutenant Lizon interviewed a reliable informant who was a respected former Los Solidos member. Id., ¶ 20. The informant stated that Myers was “good money and he was brought home by Iceman.” This statement indicated to Lieutenant Lizon that Myers was a member of the SRG Los Solidos. Id., ¶ 21 (quotation marks omitted). The information was relayed to the Security Intelligence Division which approved issuance of a disciplinary report and Myers' change in classification. Id., ¶ 22. The Security Intelligence Division issued a Notice of Decision and a Class A disciplinary report to Myers and sent a hearing notice to Lieutenant Lizon recommending that Myers be placed in Phase I of the SRG Program. Id., ¶ 23. The hearing notice, stating that a Security Risk Group Member hearing would be scheduled on a date to be determined, was signed by Lieutenant Richardson. Defs.' Mem. Ex. 10, Doc. No. 34-10. The Security Risk Group Member Notification of Decision, delivered and witnessed by Lieutenant Richardson, indicates that the hearing was held on May 25, 2016. Id., Ex. 8, Doc. No. 34-8.

         The medical unit cleared Myers for placement in the restrictive housing unit (“RHU”). Officer Bailey escorted Myers to RHU at Lieutenant ...

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