United States District Court, D. Connecticut
KEVIN A. MYERS, JR., Plaintiff,
SCOTT SEMPLE, et al., Defendants.
MEMORANDUM OF DECISION
A. Dooley United States District Judge.
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. For the reasons that follow, the
Defendants' motion is granted.
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).
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).
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).
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.,
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.
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.
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.,
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.
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.
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.
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).
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.
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.
medical unit cleared Myers for placement in the restrictive
housing unit (“RHU”). Officer Bailey escorted
Myers to RHU at Lieutenant ...