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Gray v. Licon-Vitale

United States District Court, D. Connecticut

November 12, 2019

BRANDON MICHAEL GRAY, Plaintiff,
v.
M. LICON-VITALE, et al., Defendants.

          INITIAL REVIEW ORDER

          Michael P. Shea United States District Judge

         Plaintiff Brandon Michael Gray, incarcerated at the Federal Correctional Institution in Danbury, Connecticut, filed this case under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 288 (1971). The plaintiff names four defendants, Warden M. Licon-Vitale, Associate Warden D. Womeldorf, Associate Warden Comstock, and the Bureau of Prisons. He contends that the defendants discriminated against him because of his disability and have denied him due process, free speech, and equal protection of the laws by denying him access to email to contact his family. The plaintiff does not request any relief in his complaint. He also has filed a motion for appointment of counsel and two motions to amend his complaint, neither of which includes a proposed amended complaint.

         The Court must review prisoner civil complaints and dismiss any portion of the 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. This requirement applies to all prisoner filings regardless whether the prisoner pays the filing fee. Nicholson v. Lenczewski, 356 F.Supp.2d 157, 159 (D. Conn. 2005) (citing Carr v. Dvorin, 171 F.3d 115 (2d Cir. 1999) (per curiam)). Here, the plaintiff is proceeding in forma pauperis.

         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). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).

         “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).

         I. Allegations

         The plaintiff suffers from Intellectual Developmental Disorder, which he alleges renders him “unable to obtain community and family ties with the outside world.” ECF No. 1 ¶ 2. The plaintiff contends that “courts have deemed letter writing as an unmeaningful way of contact, ” and argues that email is an essential means of contact with family. Id. ¶ 4. Correctional staff have restricted the plaintiff's access to email. Id. ¶ 3. The plaintiff contends that letters, phone calls, and visits are limited and costly while email is quick, efficient and cheap. Id. ¶ 5.

         Bureau of Prisons Program Statement 4500.11 provides that an inmate should not be restricted from email access solely because he was convicted of a sex offense. Id. ¶ 7. Other inmates convicted of more serious crimes, such as drug offenses, murder, and armed robbery, have email access. Id. ¶ 8. Also, other inmates with sex offenses including possession of child pornography and sexual exploitation of a minor have email access. Id. ¶¶ 9-10.

         II. Analysis

         The plaintiff alleges that the defendants have discriminated against him in violation of his rights under the Rehabilitation Act, and denied him free speech, due process and equal protection of the laws. In his first motion to amend, the plaintiff states that he seeks monetary relief for negligence and intentional infliction of emotional distress. ECF No. 10 at 1. In his second motion to amend, the plaintiff submits a letter he sent the warden about access to the prison email system. ECF No. 12.

         A. Motions to Amend

         By order filed September 19, 2019, the Court informed the plaintiff that, if he wanted to amend his complaint, he must do so by filing an amended complaint on the docket. The Court also informed the plaintiff that any amended complaint would completely replace the original complaint. ECF No. 9. The Court received the plaintiff's motions to amend on September 26 and 30, 2019. Thus, the plaintiff may not have received the Court's order before submitted his motions. As it does not appear that the plaintiff intended either submission to completely replace his original complaint, both motions are denied. The Court notes that the plaintiff has been granted an extension of time, until November 25, 2019, to respond to the Court's order. ECF No. 16. Thus, the Court assumes that the plaintiff intends to submit a proper amended complaint by that date.

         B. Bureau of Prisons

         The plaintiff has included the Bureau of Prisons (“BOP”) as a defendant. In Bivens, the Supreme Court permitted suits against federal officials in their individual capacities for violation of constitutional rights. Thus, the defendants must be individual federal officers. The BOP, a federal agency, cannot be sued under Bivens. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 72 (2001) (“The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP.”); see also Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (noting that ...


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