Vega v. Rell et al

Filing 325

ARTICULATION OF THE COURT'S DISMISSALS AND ENTRIES OF JUDGMENT AS A MATTER OF LAW: The Court hereby articulates in aid of appeal its dismissals and entries of judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. See the attached document. The Clerk is directed to mail a copy of this Order to the pro se Plaintiff. Signed by Judge Vanessa L. Bryant on 3/24/14. (Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOE BURGOS VEGA,
Plaintiff,
v.
GOV. JODI RELL, et al.,
Defendants.

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CASE NO. 3:09-cv-737 (VLB)

March 24, 2014

ARTICULATION OF THE COURT’S DISMISSALS AND ENTRIES OF JUDGMENT

Following the evidentiary stage of a trial in this matter, the Defendants
made motions to dismiss and for judgment as a matter of law which the Court
granted. Although the Court stated the reasons for its orders from the bench, it
now articulates those reasons more fully to aid in the appellate court’s
consideration of the Plaintiff’s appeal. See U.S. v. Viola, 12-4160, 2014 WL
503069, at *2 (2d Cir. Feb. 10, 2014) (although a notice of appeal confers
jurisdiction on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal, the district court “still may
act in aid of the appeal” and “[t]hus, where a district court does not ‘act[ ]
impermissibly to modify a judgment substantively,’ but simply clarifies its order,
we have viewed such modifications as acts in aid of the appeal.”); Leonhard v.
United States, 633 F.2d 599, 609-10 (2d Cir. 1980) (“Once a proper appeal is taken,
the district court may generally take action only in aid of the appeal or to correct
clerical errors as allowed by the Federal Rules of Civil (or Criminal) Procedure.”).

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Pursuant to Federal Rule of Civil Procedure 50, a Court may grant
judgment as a matter of law where “a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P.
50(a)(1). A party may make a motion for judgment as a matter of law “at any time
before the case is submitted to the jury.” Fed. R. Civ. P. 50(a)(2). In ruling on a
motion for judgment as a matter of law, a court may consider all of the evidence
in the record, but it “must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the
evidence.” Cross v. New York City Transit Auth., 417 F.3d 241, 247 (2d Cir. 2005)
(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). A
Rule 50 motion may be granted where “there can be but one conclusion as to the
verdict that reasonable men could have reached.” Cross, 417 F.3d at 248 (internal
quotation marks and citation omitted).
The Plaintiff, Joe Burgos Vega, filed this action on May 5, 2009. On
September 6, 2012, after numerous extensions of time and a ruling on the
Defendants’ first motion for summary judgment, the Court set the deadline for the
parties’ joint trial memoranda for November 9, 2012; the case was scheduled to
proceed to jury selection on January 29, 2013 and to trial in February, 2013. [Dkt.
no. 159]. The parties, however, were not prepared to proceed to trial at that time.
[See. Dkt. no. 201]. After a conference between the parties and the Court, the
Court set a new scheduling order, allowing the parties an additional sixteen
months to conduct discovery, granting Defendants’ request to file a second

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motion for summary judgment, and allowing the Plaintiff more opportunity to
prepare for trial. [Dkt. nos. 202, 203].
At the time this scheduling order was entered, the Court discussed with Mr.
Vega in detail the need to and the process for procuring witnesses and experts to
testify at trial. Mr. Vega was informed by the Court on the record – a fact
acknowledged by Mr. Vega during this trial – that it was his responsibility to
identify and arrange for the presence of witnesses at trial, and that the Court
would issue subpoenas for him to serve upon his request. The Court specifically
advised Mr. Vega of the need to contact experts and witnesses in advance of trial,
and discussed the potential availability of certain of Plaintiff’s desired witnesses.
The Defendants also agreed to make then-current Department of Corrections
employees and officials available for trial upon Mr. Vega’s request. On the eve of
this trial, nearly a year after having first discussed trial preparation with Mr. Vega,
the Court re-engaged the Plaintiff on these issues, reminding him of the need to
present witnesses at trial and of the availability of Court resources to assist him.
In addition, the Court issued writs of habeas corpus for the production of four
inmate witnesses at Mr. Vega’s request, including two witnesses who were
produced but who Mr. Vega later chose not to call.
Notably, Mr. Vega has legal training and experience. He completed a
paralegal program in which he earned a grade point average of approximately 98
percent. He demonstrated the ability to assimilate and apply legal rules and
principles. In addition to the instant case he filed and prosecuted two other
cases: Vega v. Lantz, et al 3:03-cv-2248-PCD and Vega v. Lantz, et al, 3:04-cv-

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1215-DFM. He also actively participated in a trial of at least one comparable civil
case in federal court with the assistance of counsel, and in which judgment was
also entered in favor of the Defendants on all counts, and he was a defendant in a
criminal case in which there was a jury trial in USA v. Joseph Vega Burgos 3:96cr-00190-WWE.
In spite of this education and experience, the Court’s advice and provision
of resources, and the ample time afforded Mr. Vega in which to prepare for trial,
the Plaintiff failed to call any Department of Corrections employee or official who
could have testified to the characteristics of the cheese or Jolly Ranchers at
issue in this case, or who could testify to Department of Corrections policies
governing compact discs and electronic devices. Given the complete lack of
evidence supporting the Plaintiff’s claims, the Court directed a verdict in favor of
the Defendants, entering judgment in favor of five Defendants and dismissing the
remaining eight.
First Amendment Retaliation
The Plaintiff’s thirteenth cause of action alleged that Defendant correction
officers Madison and Sanchez retaliated against him for filing a previous federal
lawsuit in violation of the First Amendment by charging him with two disciplinary
reports. To sustain a First Amendment retaliation claim, a prisoner must
demonstrate the following: “(1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the plaintiff, and (3)
that there was a causal connection between the protected speech and the
adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (citing Dawes

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v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
The only evidence Mr. Vega offered in support of these claims, however,
was his testimony that Madison and Sanchez each made banal statements of fact
that Vega had sued Department of Corrections officials. Mr. Vega did not
introduce any evidence that either man threatened or menaced him or that the
statements were uttered with any invective. No reasonable juror could find that
these statements alone could prove that Madison or Sanchez retaliated against
Vega when they each filed a disciplinary report of a physical altercation between
Mr. Vega and his cellmate as required by Department of Correction policy. Mr.
Vega admitted to being involved in a violent altercation with his cellmate and that
it was Department of Correction policy to discipline both inmates involved in an
altercation. The Defendants also introduced evidence and Mr. Vega admitted that
his cellmate claimed Vega had attacked him, while Vega claimed he was attacked
by his cellmate. Mr. Vega testified that, hours before the altercation in question,
he was attacked by this same cellmate, and he admitted that he did nothing to
seek the assistance of or protection by prison officials. Sanchez’s and Madison’s
statements of fact are also insufficient to establish a causal connection to the
disciplinary reports which Department policy required they complete because Mr.
Vega offered no evidence as to when the officers made these statements. Thus,
there exists no evidence of temporal proximity between the statements and the
issuance of the disciplinary reports. See Espinal v. Goord, 558 F.3d 119, 129 (2d
Cir. 2009) (“A plaintiff can establish a causal connection that suggests retaliation

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by showing that protected activity was close in time to the adverse action”).
Lastly, to the extent that Mr. Vega claims that the disciplinary reports were issued
in retaliation for his exercise of his faith, Vega presented no evidence whatsoever
– testimonial or otherwise – as to this claim. Judgment as a matter of law was
appropriate on Mr. Vega’s retaliation claim (count 13).
Religious Exercise Claims
Plaintiff’s counts 4, 14, 15, and 21 each contain claims for violations of Mr.
Vega’s First Amendment right to free exercise of his religion and claims for
violations of his rights under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) and Conn. Gen. Stat. § 52-571b.
A prisoner’s free exercise claims are “judged under a ‘reasonableness’ test
less restrictive than that ordinarily applied to alleged infringements of
fundamental constitutional rights” and must be balanced against “the interests
of prison officials charged with complex duties arising from administration of the
penal system.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). An inmate
claiming a violation of this right must demonstrate that the government placed a
substantial burden on the exercise of religious beliefs sincerely held and central
or important to his religion. Id. at 592-93. A government regulation that burdens
a protected right, however, does not violate the free exercise clause of the First
Amendment “if it is reasonably related to legitimate penological interests.”
Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (citation omitted). The
burden remains on the prisoner to demonstrate that the government’s
penological concerns are irrational. Id.

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“RLUIPA protects inmates by providing that a government shall not
‘impose a substantial burden’ on the ‘religious exercise’ of inmates in certain
institutions unless the government shows that the burden furthers a compelling
governmental interest by the least restrictive means” of furthering that
compelling government interest. Id. at 273. RLUIPA, however, “does not elevate
accommodation of religious observances over an institution's need to maintain
order and safety.” Cutter v. Wilkinson, 544 U.S. 709, 710 (2005).
Similarly, Connecticut law protects the rights of residents to exercise their
religion. Conn. Gen. Stat. § 52-571b echoes RLUIPA, providing that “[t]he state or
any political subdivision of the state shall not burden a person's exercise of
religion under section 3 of article first of the Constitution of the state even if the
burden results from a rule of general applicability” except where application of
such a burden “is in furtherance of a compelling governmental interest, and [ ] is
the least restrictive means of furthering that compelling governmental interest.”
Conn. Gen. Stat. Ann. § 52-571b(a), (b).
As to Mr. Vega’s claim that the prison commissary’s allegedly false labeling
of Jolly Ranchers as Halal constituted violations of his religious rights, Vega
failed to introduce any evidence upon which a reasonable jury would have a
legally sufficient evidentiary basis to find in his favor. First, although evidence
demonstrated that a commissary order form from May 2006 listed Jolly Rancher
candies as Halal and Kosher, and a subsequent commissary order form from May
2007 did not list Jolly Ranchers as Halal, Mr. Vega failed to produce any evidence
whatsoever that Jolly Ranchers sold at the commissary at any time, including

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those on the commissary order form dated May 2006 were not Halal. Mr. Vega did
not introduce any evidence of the ingredients included in the Jolly Ranchers sold
on the May 2006 form, whether those ingredients were or were not Halal, or
whether the company producing Jolly Ranchers changed the ingredients between
May 2006 and May 2007 such that the commissary order form also changed to
reflect this. The only evidence presented at trial was Mr. Vega’s own testimony
that Jolly Ranchers have never been Halal, and his testimony that he relied on a
book from a Muslim organization stating that Jolly Ranchers are not Halal. Mr.
Vega was not an expert and he offered no expert testimony despite the fact that
his prison imam testified at the trial and could have been offered as an expert and
in fact did offer opinion testimony on certain ecumenical issues without
objection. Fed. R. Evid. 702. Further, the book on which Vega relied was
inadmissible as it was unauthenticated hearsay within hearsay. Fed. R. Evid.
801(c), 803(18), 805. Mr. Vega did not offer an affidavit, certified copy, testimony
or any other means of authenticating the book, despite his legal training, the
Court’s specific instructions, and the additional time afforded for trial preparation
after those instructions were given.
Even if Mr. Vega’s own opinion testimony could tend to establish that
Jolly Ranchers were never Halal, which it cannot, Mr. Vega has failed to introduce
any evidence that the Department of Correction’s inclusion of the Halal
designation on the May 2006 form was intentional or reckless and not merely
negligent such that he could maintain a § 1983 action for deprivations of his
constitutional rights.

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Second, Vega failed to introduce evidence of a firmly held religious belief
that he could not eat Jolly Rancher candies or that eating Jolly Ranchers
constituted a substantial interference with the practice of his religion. On crossexamination, Mr. Vega was impeached by his commissary account records, which
showed that he continued to purchase Jolly Rancher candies even after learning
that they were not Halal in August 2007. Indeed, these records demonstrated that
Vega bought 87 packets of Jolly Ranchers after he testified learning that the
candy was allegedly prohibited by his religion. Vega admitted that he continued
to purchase Jolly Ranchers after learning that they were not Halal, and attempted
to rehabilitate his testimony by testifying that he did not eat the candy, but rather
used the Jolly Ranchers to barter with other inmates for other items also
available in the commissary. Mr. Vega introduced no evidence tending to explain
why inmates would barter for Jolly Ranchers, which were available in the
commissary, with other items also available for purchase in the commissary.
Further, when his explanatory testimony was impeached by the introduction of
the prison policy against bartering with other inmates, Vega explicitly denied the
plain meaning of the express language of the policy and, after further
questioning, eventually admitted that pursuant to this policy (of which he claimed
he was unaware), bartering with other inmates was strictly prohibited. Mr. Vega’s
attempt to rehabilitate his testimony was halting and incredulous. He was clearly
patently surprised and nonplussed by the presentation of his commissary
purchase records, and hesitated in giving a response which was delivered in a
desperate tone of voice distinctly different from that of his other testimony.

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Even viewing the evidence in the light most favorable to Mr. Vega that he
believed Jolly Rancher candy was Halal when he purchased them for his own
consumption and that he continued to purchase them after he came to believe
that they were not Halal solely to barter with other inmates, given that Mr. Vega
introduced no evidence that Jolly Ranchers were in fact not Halal during the time
they were listed as Halal on the commissary order form, he failed to introduce any
evidence that his religious beliefs had been burdened in any way, let alone
substantially burdened in contravention of either federal or state constitutional
law.
Judgment as a matter of law was also proper as to Mr. Vega’s fifteenth
count based on a lack of evidence corroborating Mr. Vega’s religious freedom
claims. Mr. Vega alleged in count fifteen that the cheese on the Department of
Corrections’ common fare menu was not Halal, thereby violating Mr. Vega’s
religious rights pursuant to the First Amendment’s free exercise clause and the
RLUIPA. Mr. Vega introduced into evidence a photocopy of a portion of a cheese
wrapper given to him by an inmate kitchen worker who testified that the cheese
was served on the common fare menu. The partial wrapper does not state that
the cheese is Halal. The ingredients listed on the wrapper include “enzymes,” but
the only evidence concerning enzymes was offered by Mr. Vega’s witness, Imam
Avci, who testified that enzymes could be made from either non-Halal meat, Halal
meat, or vegetables, which are Halal. No further evidence was presented
regarding the enzymes contained in the cheese. Thus, the partial wrapper does
not establish by a preponderance of the evidence that the cheese served by the

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Defendants was not Halal; rather, it only establishes that the cheese contained
enzymes, the origin of which remains undetermined. Mr. Vega also offered the
testimony of an inmate commissary server who testified that all inmates were
served the same cheese. However absent evidence that the cheese was not
Halal, this does not constitute a violation of Vega’s right of religious expression
or practice because he offered no evidence that serving Halal cheese to nonMuslims violated his religious beliefs or impeded his religious observance.
Furthermore, although Mr. Vega’s complaint contains an allegation that the
Defendants retaliated against him due to his religious beliefs in relation to the
serving of non-Halal cheese, Mr. Vega presented no evidence whatsoever as to
retaliation at trial as to any Defendant in relation to cheese. There was thus no
legally sufficient evidentiary basis for a reasonable jury to find for Mr. Vega on
the issue of cheese.
Mr. Vega similarly failed to present sufficient evidence that the condition of
the prayer rugs substantially burdened the exercise of his religious beliefs such
that a reasonable jury would have a legally sufficient evidentiary basis to find for
him on count 21. Mr. Vega introduced no evidence that any of the Defendants
was responsible for the condition of the prison prayer rugs. Rather, the only
evidence introduced at trial was that Mr. Vega made a complaint to Chaplain
Imam Avci, who is not a defendant in this action. Imam Avci took Mr. Vega’s
complaint to his superior, Defendant Rene Kieda, who assigned the duty of
cleaning the rugs to Imam Avci and gave him supplies with which to clean the
rugs and Muslim inmate staff to clean them. Imam Avci specifically testified that

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on the occasion of Vega’s complaint, the rug was dusty, but that the rug was
never filthy or unsuitable for prayer. He further testified that vacuuming the rug
rid it of dust and took care of any problem that existed. He testified that he
supervised the cleaning of the rugs after Vega lodged his singular complaint. Mr.
Vega did not sue Imam Avci, the party responsible for cleaning the rugs, nor did
he complain about the rug after Rene Kieda made Imam Avci responsible for
cleaning them. Vega did attempt to impeach Imam Avci’s testimony in
contradiction of his claims by offering the testimony of another inmate who
testified that the rug was “filthy,” but he did not state when it was filthy. Mr. Vega
has both failed to bring suit against the party responsible for the condition of the
prayer rugs, and has failed to elicit evidence that the rugs’ conditions
substantially burdened the exercise of his religion.
No evidence was presented at trial to support Mr. Vega’s allegation in
count four that his religious freedom pursuant to the First Amendment, RLUIPA,
or Connecticut constitutional or statutory law was infringed by the denial of his
requests to purchase a digital Quran or Islamic educational compact discs, nor
was any evidence presented that these denials constituted a violation of Mr.
Vega’s right to equal protection under the Fourteenth Amendment.1 Although Mr.
Vega testified that he needed a digital Quran because he was confined in a cell

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To prove an equal protection violation, a plaintiff “must demonstrate that he was
treated differently than others similarly situated as a result of the intentional or
purposeful discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005).
“He also must show that the disparity in treatment cannot survive the appropriate
level of scrutiny which, in the prison setting, means that he must demonstrate
that his treatment was not ‘reasonably related to [any] legitimate penological
interests.’ ” Id. (quoting Shaw v. Murphy, 532 U.S. 223, 229 (2001)).
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measuring six feet by six feet, he offered no testimony that he did not have room
for his religious reading material or that he did not have access to a traditional
Quran. He also admitted that he had been given permission to purchase and has
in his possession many Islamic cassette tapes, including some relating to the
Quran. In addition, Vega’s direct testimony that he was denied recordings of the
Quran was impeached by evidence that Department of Corrections policy forbade
all inmates from having digital electronic equipment for security reasons,
although the policy was under review. Further. Mr. Vega testified that he did not
know of any other inmate who had a digital electronic device. No reasonable jury
could find that Vega was denied his right of religious freedom by having to read
the Quran or other Islamic educational materials in a traditional format or listen to
it on a cassette recorder rather than a digital compact disk player.
Likewise, no legally sufficient evidentiary basis was presented at trial such
that a reasonable jury could find that Mr. Vega’s religious rights were infringed by
the denial of his request to buy Islamic educational compact discs (CDs).
Although Vega testified that cassettes were being phased out at the time he
complained about his inability to purchase compact discs, he introduced no
evidence that the material he sought to purchase on CDs was not available on
cassette tapes. In fact, just days before he grieved his inability to purchase CDs,
Vega admitted that he was given permission to purchase ten Islamic cassette
tapes. In addition, as noted above, Department of Corrections policy forbade
inmates from having CDs at the time of Vega’s request. Vega admitted that he
was notified that this policy was under reconsideration. Finally, Vega offered no

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direct or circumstantial evidence from which a jury could conclude that any other
particular inmate was allowed to have religious or any other CDs at the time of his
request, in violation of the Fourteenth Amendment.
Eighth Amendment Claims
Mr. Vega also alleged violations of the Eighth Amendment in relation to
counts 4, 14, and 21. The Eighth Amendment to the United States Constitution
prohibits the infliction of “cruel and unusual punishments.” U.S. Const. Amend.
VIII; Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). The Eighth Amendment
imposes on prison officials a duty to provide humane conditions of confinement
and to “take reasonable measures to guarantee the safety of the inmates.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994). To make out a violation of the Eighth
Amendment, a plaintiff must demonstrate first that the injury suffered was
“sufficiently serious,” and second, that the responsible officials must have acted
with “deliberate indifference to inmate health or safety.” Id. at 834 (citations
omitted); Wassmann v. Cnty. of Ulster, N.Y., 528 F. App'x 105, 106 (2d Cir. 2013)
(same).
Mr. Vega presented no evidence at trial to corroborate either prong of the
Eighth Amendment analysis: no evidence on the record demonstrates that any
Defendant acted with deliberate indifference to inmate health or safety, and
indeed no evidence demonstrates that Mr. Vega’s claims as to the denial of the
digital Quran or CDs, the non-Halal Jolly Ranchers, or the prayer rugs even
reasonably relates to inmate health or safety. As such, there is no legally

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sufficient evidentiary basis for a reasonable jury to find in favor of Mr. Vega on
his Eighth Amendment claims.
Dismissal of Defendants
Finally, the Plaintiff failed to offer any evidence regarding the acts or
omissions of numerous Defendants as to whom the Court entered dismissals,
including Rene Kieda, Michael Beaudry, Andrew Johnson, Lieutenant Allen,
Maureen Allen, Officer Arzt, Officer Sharon, and Neil Cormier.
Conclusion
For the foregoing reasons, the Court entered judgment as a matter of law
pursuant to Rule 50 in favor of all Defendants.

IT WAS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 24, 2014

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