O'dell'bey v. Semple

          INITIAL REVIEW ORDER

          Jeffrey Alker Meyer United States District Judge

         Plaintiff D'émon O'dell'bey (legal name Jayquan Dilday) is a pretrial detainee and has filed this lawsuit against various officials of the Connecticut Department of Correction (“DOC”) arising from his placement in restrictive confinement. He alleges that he was wrongly placed in the DOC's Security Risk Group (SRG) program-a program that subjects detainees suspected of affiliations with certain criminal gangs to more restrictive conditions of confinement.^[1] For the reasons stated below, I will allow most of O'dell'bey's claims to proceed except official capacity damages claims and those claims alleging violations of O'dell'bey's constitutional right to assistance of counsel and access to the courts.

         Background

         O'dell'bey's complaint names the following five defendants in their official and individual capacities: Scott Semple, the DOC Commissioner; John Aldi, the Counselor Supervisor for the DOC's SRG/Gang Management Unit; Antonio Santiago, the DOC Director of Security; David Maiga, DOC's Director of Offender Classification and Population Management; and Nick Rodriguez, the Warden of the Northern Correctional Institution.^[2]

         The following facts are alleged in the complaint (Doc. #1) and are accepted as true only for purposes of this ruling. In 2014 and 2015, O'dell'bey served a nine-month sentence for “minor charges” at an unnamed Connecticut correctional facility. Doc. #1 at 4 (¶ 19). On January 9, 2015, during the term of that sentence, O'dell'bey was wrongfully designated a member of the Bloods, a well-known gang, after the DOC intercepted a letter in which O'dell'bey described the recipient as a “Blood, ” a term O'dell'bey explains was meant in the sense of “Bro, Brother, Fam, or Family.” Id. at 4 (¶ 18). O'dell'bey acquiesced to this designation at the time, “in a state of youth and naivety, to avoid further detriment from a possible guilty finding after measuring it to the length of his sentence.” Ibid.

         Nonetheless, the DOC concluded based on this letter that O'dell'bey should be placed in the SRG program, and O'dell'bey retained that designation until his release on September 11, 2015. Id. at 4 (¶ 19). O'dell'bey was designated a gang member without any form of hearing or notice, notwithstanding the procedures set forth in DOC's Administrative Directive 9.4. Id. at 3 (¶ 27). It appears that, although O'dell'bey served out his specified term of incarceration, he did not (and perhaps could not in the time remaining in his sentence) complete the specified SRG programming. Id. at 3 (¶ 23).

         At all times, O'dell'bey claims that defendants Miaga and Semple “are responsible for [O'dell'bey's] placement in a restrictive housing unit because as Director of Offender Classification and Population Management, Defendant Miaga makes the assessment of the offender and determines his overall risk level and needs, which determines what level prison one goes to and as Commissioner defendant Scott Semple has the final say.” Id. at 8 (¶ 57). Meanwhile, “Defendants John Aldi and A. Santiago are answerable for the conditions that were imposed on the plaintiff, because as the SRG Coordinator . . . John Aldi proposes security provisions in the SRG program and [Director of Security] Santiago approves or denies them.” Id. at 8 (¶ 58).

         O'dell'bey was re-arrested on May 3, 2018, on charges of third-degree burglary, among other things. He was remanded to the custody of the DOC in advance of trial. He is presently incarcerated in the Corrigan-Radgowski Correctional Center (“Corrigan”), and his case remains pending.^[3]

         While awaiting trial on his present set of charges, O'dell'bey was initially incarcerated in the Bridgeport Correctional Center. Doc. #1 at 3 (¶ 21). While there, O'dell'bey was once again designated a gang member and placed in a Restrictive Housing Unit (RHU), where he was separated from the general population, handcuffed upon exiting the cell, denied access to the phone, forced to eat in his cell, limited to three showers and two changes of clothes a week, and given a “Ferguson gown” (a tear-resistant single-piece outer garment designed to be unable to be used as a noose) because, the guard informed O'dell'bey, Bridgeport Correctional Center had the highest suicide attempt rates of any prison in the state. Id. at 3 (¶¶ 21-22).

         When O'dell'bey was transferred to Corrigan, he was once again designated as a Blood and transferred to the facility's SRG block “for a failure to complete the security risk group program on his prior sentence.” Id. at 3 (¶ 23). At the SRG block, O'dell'bey was extorted by other inmates, who unlike him really were Bloods, and who told O'dell'bey he could not live amongst them when he failed to pay protection money. Id. at 3 (¶ 28). A Captain Tommaro moved O'dell'bey from B-Pod to E-Pod-still in the SRG block-because of “issues” O'dell'bey had with the Bloods, id. at 3 (¶ 29), but problems continued and ultimately O'dell'bey was attacked by a gang member. Id. at 3 (¶ 30). O'dell'bey was punished for defending himself from this attack; he was placed in a more restrictive housing unit and was issued a class A ticket. Ibid.

         O'dell'bey applied for protective custody while housed in the Corrigan SRG block, but before this application could be acted upon, he was transferred to the MacDougall-Walker Correctional Institution's SRG block. Id. at 3 (¶ 30). At or around the time of the transfer, defendant Aldi told O'dell'bey that O'dell'bey's assignment to SRG status was punitive, and that Aldi understood the DOC's administrative guidelines to permit punitive assignment of SRG status. Id. at 3, 5 (¶¶ 30-31).

         Throughout O'dell'bey's time as an SRG designee, he was subjected to various restrictions not imposed on other prisoners. These included a limitation on his phone calls to three per week-even when O'dell'bey was using the phone to prepare for his defense- forfeiture of good behavior credit, ineligibility for community supervision, a bar on visitors other than immediate family members, a limitation of three showers per week, strip-searches each time he left his cell, and a ban on using the law library or leisure library. Id. at 5 (¶ 32). O'dell'bey characterizes his SRG housing as a “hostile environment, ” ibid., owing to the presence of hardened convicted criminals who have “extorted and assaulted” him. Id. at 7 (¶ 52).

         O'dell'bey made a written request to defendant Santiago to be relieved from at least some of these conditions, complaining about his inability to consult his lawyer over the phone (more than the permitted three times per week), his lack of access to the law library, and the invasion of his privacy caused by the strip-searches. Id. at 5 (¶ 34). Defendant Santiago did not respond. Ibid. In July 2018, O'dell'bey filed a grievance, articulating the same complaints; there was still no response. Id. at 5 (¶ 36). Nor was there a response to O'dell'bey's appeal of the constructive denial of his grievance. Id. at 7 (¶ 53).

         Later in June 2018, however, O'dell'bey was served an SRG ticket that, he alleges, falsely accused him of using “SRG language” in a letter to his mother. O'dell'bey was formally designated a gang member at a hearing held in August 2018 solely based on evidence presented by defendant Aldi. In addition to a renewed SRG classification, O'dell'bey was punished with a 90-day loss of phone privileges except for two legal calls per month. Id. at 6 (¶¶ 39, 45). O'dell'bey appealed this determination, but his appeal was denied and his subsequent level three appeal was denied in November 2018. Id. at 8 (¶ 64). He also wrote a letter to defendants Semple, Aldi, Miaga, and Santiago in August 2018 complaining about all of the above, a letter to which the defendants failed to reply. Id. at 6 (¶ 42).

         At some point thereafter, O'dell'bey was reassigned from Phase 2 of the SRG program to Phase 1 and transferred “under the discretion of” defendants Miaga, Semple, and Aldi to Northern Correctional Institution (“Northern CI”), Connecticut's “level 5 supermax facility, ” which imposed restrictions on him in addition to those detailed above: he was shackled whenever outside his cell, handcuffed during his one hour of recreation, and barred from the use of television or CDs (but permitted the use of radio). Id. at 7 (¶ 49). These conditions caused O'dell'bey “physical, emotional and mental pain, ” Id. at 7 (¶ 51), including depression and “auditory and visual hallucination under the authority of psychiatric professionals and doctors.” Id. at 7 (¶ 52).

         In October 2018, O'dell'bey requested a transfer from Northern CI, arguing his placement there, and in the SRG, was unconstitutional; there was no response to his request. Id. at 8 (¶ 55). Two days later, O'dell'bey stopped defendant Rodriguez while Rodriguez was on a tour of Northern CI and requested a transfer, “informing him of [O'dell'bey's] misplacement.” Id. at 8 (¶ 60). Rodriguez replied that he would not fix the situation, which, Rodriguez said, was a consequence of O'dell'bey's gang membership. O'dell'bey filed this suit in March 2019, and remains subject to these conditions.

         I understand O'dell'bey's complaint to allege the following constitutional claims.

         First, O'dell'bey claims that because SRG status brings about a wide variety of harsh conditions that can only be characterized as punitive, an assignment to SRG status is punishment of a pretrial detainee, in violation of the substantive due process component of the Fourteenth Amendment.

         Second, O'dell'bey claims that, even if pretrial detainees may be placed in restrictive housing, defendants Aldi and Santiago violated O'dell'bey's procedural due process rights by (a) carrying over O'dell'bey's SRG status from his prior term of incarceration as a sentenced prisoner to apply to his current term of pre-trial detention and (b) by extending or reaffirming O'dell'bey's SRG status, all in violation of the procedural due process component of the Fourteenth Amendment.

         Third, O'dell'bey claims that Miaga, Aldi, Semple, and Santiago violated O'dell'bey's Fourth Amendment right to personal security and Fourteenth Amendment substantive and procedural due process rights by instituting a policy of strip-searching SRG designees each and every time prisoners left their cell.

         Fourth, O'Dell'bey claims that defendants Semple, Santiago, and Rodriguez created and enforced a policy imposing certain restrictions on his legal communication-specifically a ban on access to the law library and limitations on legal phone calls-that cumulatively inhibited his ability to call potential witnesses in his defense, violating his Sixth Amendment right to assistance of counsel and his constitutional right of access to the courts.^[4]

         The complaint seeks money damages against the defendants. It also seeks a declaratory judgment that the defendants violated the Fourth, Sixth, and Fourteenth Amendments, and an injunction “(1) to remove the plaintiff from the security risk group and off the computer; (2) that pretrial detainees be discluded [sic] from the Security Risk Group program; (3) [that] pretrial detainee[s] get a minimum of 4 legal calls a month to an attorney or bondsmen; (4) th[at] pretrial detainee with nonviolent offenses [be] exempt from unnecessary strip-searches; (5) and that the Blanket ...