King Knowledge Born Allah v. Semple

          MEMORANDUM OF DECISION RE: MOTION TO STRIKE (DE#s 55, 56), MOTION TO CLARIFY THE RECORD (DE#58), AND MOTION FOR SUMMARY JUDGMENT (DE#43)

          ARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         Statement of the Case

         On May 25, 2018, Plaintiff, King Knowledge Born Allah a/k/a Philipe Colon, a prisoner in the custody of the Connecticut Department of Correction (“DOC”), filed a complaint pro se under 42 U.S.C. § 1983 against several DOC officials for violating his constitutional rights. Compl. (DE#1). After initial review, the Court, Meyer, J., permitted Plaintiff's Fourteenth Amendment due process claim to proceed against four defendants: Correction Officer Kelly, Correction Officer Cossette, Correction Officer Pacelli, and Lieutenant Bare. Initial Review Order (DE#9). The Court also permitted Plaintiff's First Amendment retaliation claim to proceed against two other defendants: Director of Security Christine Whidden and Security Risk Group (“SRG”) Coordinator John Aldi. Id. On January 4, 2019, this Court dismissed Plaintiff's claim against Kelly and Bare for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5) and the claim against Whidden and Aldi for failure to state a claim under Rule 12(b)(6). Mem. of Decision Re: Mot. to Dismiss (DE#35). The Court permitted the case to proceed on the due process claim against Pacelli and Cossette. Id.

         On March 29, 2019, Pacelli and Cossette (“Defendants”) moved for summary judgment on Plaintiff's sole remaining due process claim. Defs.' Mot. for Summ. J. (DE#43); Mem. of Law in Supp. of Defs.' Mot. for Summ. J. (“Defs.' Mem.”) (DE#43-1). They assert that they are entitled to summary judgment on the due process claim because (1) Plaintiff has failed to present sufficient evidence showing their personal involvement in the deprivation, (2) any due process violation was harmless, and (3) the claim is barred by qualified immunity. Defs.' Mem. at 10-30. Plaintiff countered with a memorandum in opposition to the motion, contending that the evidence supports his due process claim, along with two affidavits. Mem. of Law in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summ. J. (“Pl.'s Opp'n”) (DE#53) 16; Aff. of King Knowledge Born Allah (“Pl.'s Aff.”) (DE#53) 34; Truth Aff. (DE#51). Defendants filed a reply on June 27, 2019. (DE#54).

         On July 11, 2019, Plaintiff filed a motion to strike Defendants' reply to his opposition as “frivolous” under Federal Rule of Civil Procedure 12(f)(2). Pl.'s Timely Resp. Mot. to Strike Defs.' Frivolous Reply and for Leave to be Held to a Less Stringent Standard (DE#s 55, 56).^[1] In support of his motion, he argues that Defendants improperly argued that he failed to comply with District of Connecticut Local Rule 56(a)(2) when responding to the motion for summary judgment, and he also asserts additional arguments in his opposition to the motion for summary judgment. Id. On July 30, 2019, Plaintiff filed a “Motion to Clarify the Record, ” in which he asserts that his motion to strike should be granted because Defendants “have made numerous fraudulent, misleading, [and] meritless claims in their reply.” Mot. to Clarify the R. (DE#58).

         For the following reasons, Plaintiff's motion to strike Defendants' Reply and “Motion to Clarify the Record” are DENIED, and Defendants' motion for summary judgment is GRANTED.

         Motion to Strike Defendants' Reply\

         “[T]he [C]ourt may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter . . . on a motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Fed. R. Civ. P 12(f)(2). Motions to strike under Rule 12(f) “are only appropriately directed to pleadings;” Santiago v. Owens-Illinois, Inc., No. 3:05-CV-405 (JBA), 2006 WL 3098759, at *1 (D. Conn. Oct. 31, 2006) (emphasis in original) (internal quotations omitted); which include a complaint, answer, answer to counterclaim, answer to crossclaim, third-party complaint, answer to third-party complaint and, if ordered by the Court, a reply to an answer. See Fed. R. Civ. P. 7(a). By its text, the rule does not apply to a memorandum submitted regarding substantive motions. See Carman-Nurse v. Metropolitan District Commission, No. 3:16-CV-1987 (VAB), 2018 WL 3935025, at *6 (D. Conn. Aug. 15, 2018).

         Plaintiff's motion to strike is therefore improper because it is not directed at a pleading but, rather, at a reply memorandum in support of a motion for summary judgment. To the extent he takes issue with any of Defendants' assertions in the reply or the motion for summary judgment, Plaintiff was free to counter their arguments in his opposition and Local Rule 56(a)(2) Statement. Accordingly, the motion to strike (DE # 55, #56) and motion to clarify the record are DENIED.

         With respect to the dispute regarding Plaintiff's Local Rule 56(a)(2) Statement, the Court notes that some of Plaintiff's denials contain citations to exhibits and some do not. The Court accepts Plaintiff's Local Rule 56(a)(2) Statement as is. But, per the local rules, any denial or written explanation which does not cite to evidence in the record cannot be relied upon to create a genuine issue of material fact. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 540 U.S. 811 (2003).

         Standard of Review for Motion for Summary Judgment

         A party seeking summary judgment bears the burden of demonstrating that there are no genuine issues of material fact in dispute and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law” and is “genuine” if “a reasonable jury could return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (mere existence of alleged factual dispute will not defeat summary judgment motion). The moving party may satisfy this burden “by showing - that is pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curium) (internal quotations omitted; citations omitted).

         When a motion for summary judgment is supported by documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of material fact, ” the nonmoving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). The nonmoving party must do more than vaguely assert the existence of some unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated speculation.” Id.; see also First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289 (1968) (nonmoving party must submit evidence supporting factual dispute that will require factfinder to resolve differing versions of truth at trial).

         The Court must “construe the evidence in the light most favorable to the non-moving party and to draw all reasonable inferences in its favor.” Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation omitted). If there is any evidence from which a reasonable factual inference could be drawn in favor of the non-moving party for the issue on which summary judgment is sought, then summary judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

         Where one party is proceeding pro se, the Court must read his papers liberally and interpret them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted). Despite this liberal interpretation, however, “[u]nsupported allegations do not create a material issue of fact” and cannot overcome a properly supported motion for summary judgment. See Weinstock, 224 F.3d at 41.

         Material Facts

         The Court draws the following facts from the Local Rule 56(a) Statements (DE#s 43-2, 53) and the evidence submitted by both parties.

         In September 2015, the plaintiff was confined at the Cheshire Correctional Institution (“Cheshire”). Defs.' Local Rule 56(a)(1) Stmt. (“Defs.' Stmt.”) (DE#43-2) ¶ 1; Pl.'s Local Rule 56(a)(2) Stmt. (“Pl.'s Stmt.”) (DE#53 at 3-14) ¶ 1. On September 20, 2015, he was involved in a physical altercation with six other inmates in the day room of the South Block 4 unit at Cheshire. Defs.' Stmt. ¶ 1; Pl.'s Stmt. ¶ 1. Afterward, Plaintiff was issued a Class A Disciplinary Report (“DR”) for fighting. Defs.' Stmt. ¶ 2; Pl.'s Stmt. ¶ 2; ...