United States District Court, D. Connecticut
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)
DOOLEY UNITED STATES DISTRICT JUDGE
of the Case
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.
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).
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,
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).
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.
to Strike Defendants' Reply\
[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).
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.
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).
of Review for Motion for Summary Judgment
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).
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).
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).
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.
Court draws the following facts from the Local Rule 56(a)
Statements (DE#s 43-2, 53) and the evidence submitted by both
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;