United States District Court, D. Connecticut
INITIAL REVIEW ORDER
Michael P. Shea United States District Judge
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.
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
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).
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).
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.
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.
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.
Motions to Amend
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.
Bureau of Prisons
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 ...