Boyd v. Arnone et al

Filing 51

ORDER: Motion to Dismiss (Doc. No. 45 ) is hereby GRANTED in part and DENIED in part. It is so ordered. Signed by Judge Alvin W. Thompson on 9/30/2014. (Wang, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RAY VICTOR BOYD
A/K/A I-NOBLE RA’SUN ALLAH,
Plaintiff,
v.

CIVIL NO. 3:11cv824(AWT)

LEO ARNONE, ET AL.,
Defendants.
RULING ON DEFENDANTS’ SECOND MOTION TO DISMISS
The pro se plaintiff, Ray Victor Boyd, a/k/a I-Noble Ra’Sun
Allah, who is currently incarcerated at Osborn Correctional
Institution, filed this action asserting claims under 42 U.S.C.
§ 1983, the Religious Land Use and Institutionalized Persons Act,
42 U.S.C. § 2000cc, et seq. (“RLUIPA”), and various provisions of
the Connecticut General Statutes and the Connecticut
Constitution.

The Amended Complaint named thirty-nine

defendants.1

1

The names and titles of those defendants are as follows:
Commissioner Leo Arnone, Former Commissioners Brian Murphy and T.
Lantz, District Administrators M. Lajoie and Mark Strange,
Directors of Programs and Treatment Patrick Hynes, Mary Marcial
and Monica Rinaldi, Director of Religious Services Anthony Bruno,
Wardens Peter Murphy and James Dzurenda, Deputy Wardens Timothy
Farrell, S. Barone, S. Frey and Janet Sicilia, Director of
Security Kimberly Weir, Captains Beaudry, Manley, Kelly and
Walker, Lieutenants Corl and Paine, Correctional Officers Perez
and Allen, Disciplinary Investigator Roy, Mail Room Clerk and
Counselor Supervisor DeGennaro, Remedy Coordinator R. Boland,
Chaplains Albert Pitts and Angelo Calabrese, Legislative Advisor
N. Anker, Counselor Supervisor of the Security Division J. Aldi,
Governor D. Malloy, Directors of Oversight for Media Review Board
Sharr and B. Garnett, John/Jane Doe Media Review Board members,
Assistant Attorney General Steve Strom, the City of Suffield, and
the City of Newtown.

On September 26, 2013, the court dismissed the Fifth,
Seventh and Eighth Amendment claims, the § 1985 and § 1988
claims, the claims pursuant to Conn. Gen. Stat. §§ 52-1, 52-29,
52-471 and 51-345, the claims under Article First, §§ 9 and 10 of
the Connecticut Constitution, and all other claims against
defendants Roy, Malloy, Barone, Garnett, Sharr, Rodriguez,
Sicilia, Strange, Lantz, Brian Murphy, Anker, the City of
Newtown, and the City of Suffield pursuant to 28 U.S.C.
§ 1915A(b)(1).

(See Doc. No. 15.)

The court concluded that the

First and Fourteenth Amendment claims under 42 U.S.C. § 1983, the
deprivation of religion claims under RLUIPA, and the state law
claims under Conn. Gen. Stat. § 52-571b and Article First, §§ 3,
14, 20 of the Connecticut Constitution should proceed against
defendants Arnone, Bruno, Peter Murphy, Rinaldi, Frey, DeGennaro,
Strom, LaJoie, Dzurenda, Corl, Weir, Beaudry, Pitts, Manley,
Allen, Paine, Kelly, Walker, Marcial, Boland, Aldi, Perez, Hynes,
Calabrese, Farrell, and the John/Jane Does in their individual
and official capacities.
The remaining defendants have moved to dismiss the § 1983
claims for monetary relief against them in their individual
capacities pursuant to Rule 12(b)6 of the Federal Rules of Civil
Procedure.

For the reasons set forth below, the motion is being

granted in part and denied in part.

2

I.

Legal Standard
When deciding a motion to dismiss for failure to state a

claim upon which relief may be granted under Rule 12(b)6, the
court accepts as true all factual allegations in the complaint
and draws inferences from these allegations in the light most
favorable to the plaintiff.

See Scheuer v. Rhodes, 416 U.S. 232,

236 (1974); Flores v. Southern Peru Copper Corp., 343 F.3d 140,
143 (2d Cir. 2003).

The court’s review is limited to “the facts

alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the pleadings and matters of which
judicial notice may be taken.”

Samuels v. Air Transport Local

504, 992 F.2d 12, 15 (2d Cir. 1993).

The court considers not

whether the plaintiff ultimately will prevail, but whether he has
asserted sufficient facts to entitle him to offer evidence to
support his claim.

See York v. Ass’n of Bar of City of New York,

286 F.3d 122, 125 (2d Cir.), cert. denied, 537 U.S. 1089 (2002).
In reviewing the complaint in response to a motion to
dismiss, the court applies a “plausibility standard,” which is
guided by two working principles.
U.S. 662, 678 (2009).

See Ashcroft v. Iqbal, 556

First, the requirement that the court

accept as true the allegations in the complaint “‘is inapplicable
to legal conclusions,’ and ‘[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.’”

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)

3

(quoting Iqbal, 556 U.S. at 678).

Second, to survive a motion to

dismiss, the complaint must state a plausible claim for relief.
Determining whether the complaint states a plausible claim for
relief is “‘a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.’”
(quoting Iqbal, 556 U.S. at 679).

Id.

Even under this standard,

however, the court liberally construes a pro se complaint.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro
se is to be liberally construed and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.”) (per curiam) (internal
quotation marks and citations omitted); Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994) (court should interpret pro se
plaintiff’s complaint “to raise the strongest arguments [it]
suggest[s]”).
II.

Factual Allegations2
The plaintiff alleges that he is an adherent of a religion

called the Nation of Gods and Earths (“NGE”), also known as the
Five Percenters.

From October 2008 to July 2009, the plaintiff

was incarcerated at Garner Correctional Institution in Newtown,
Connecticut (“Garner”).

During this time period defendants

Arnone, Bruno, Rinaldi, Strom, LaJoie, Dzurenda, Weir, Marcial,

2

The factual allegations are taken from the Amended
Complaint and the exhibits attached to the Amended Complaint.
4

Hynes, Calabrese and Farrell refused to permit him to engage in
congregate religious services and prayers associated with the
NGE.
In July 2009, correctional officials transferred the
plaintiff to MacDougall-Walker Correctional Institution in
Suffield, Connecticut (“MacDougall”).

From July 2009 to December

2012, defendants Arnone, Bruno, Peter Murphy, Rinaldi, Frey,
DeGennaro, Strom, LaJoie, Corl, Weir, Beaudry, Pitts, Manley,
Allen, Paine, Kelly, Walker, Marcial, Boland, Aldi, Perez and
Hynes refused to permit the plaintiff to engage in congregate
religious services and prayers associated with the NGE, denied
his request to purchase religious headwear, and restricted his
access to a religious newspaper called The Five Percenter.

The

plaintiff seeks monetary damages from the defendants in their
individual capacities.
III. Discussion
The defendants move to dismiss the § 1983 claims against
them in their individual capacities.

They argue that: (1) the

claims against Assistant Attorney General Steve Strom are barred
by absolute immunity; (2) the allegations of retaliatory transfer
fail to state a claim upon which relief may be granted; (3) any
allegations of lost property fail to state a claim under the
Fourteenth Amendment; (4) the plaintiff has failed to allege the
defendants’ personal involvement in the alleged violations of his

5

constitutional rights; and (5) they are entitled to qualified
immunity.
A.

Absolute Immunity

The defendants contend that the claims against defendant
Strom are barred by absolute immunity because all of the actions
described in the Amended Complaint were taken in his capacity as
an Assistant Attorney General.

The plaintiff contends that

defendant Strom’s conduct in giving advice to defendant Bruno,
the Department of Correction’s Director of Religious Services,
was not associated with his role as counsel for defendant Bruno.
“Absolute immunity is of a rare and exceptional character.”
Barrett v. United States, 798 F.2d 565, 571 (2d Cir. 1986).
Courts employ a “functional approach” in determining whether
state officials are entitled to absolute immunity.
White, 484 U.S. 219, 229 (1988).

Forrester v.

Thus, the court’s focus is on

“the nature of the function performed . . . [rather than] the
identity of the actor who performed it.”

Id.

State prosecutors are afforded absolute immunity for all
actions arising from conduct “intimately associated with the
judicial phase of the criminal process.”
U.S. 409, 430 (1976).

Imbler v. Pachtman, 424

In Barrett, the Second Circuit extended

the absolute immunity of prosecutors to assistant attorneys
general who work for and defend the state and state employees in
civil actions.

See id. at 573.

Absolute immunity applies to all

6

actions taken in the course of their representation of the state,
even to questionable or harmful conduct.

See id.

The burden is

on the official seeking absolute immunity to demonstrate that
“such immunity is justified for the function in question.”

Burns

v. Reed, 500 U.S. 478, 486 (1991).
The plaintiff claims that defendant Bruno referred his
requests concerning collective worship for NGE members and his
request that he be permitted to wear a religious cap to
defendant Strom for review.

The plaintiff asserts that the

review of and advice regarding his religious requests were not
“normal functions” of an Assistant Attorney General.
The defendants state that Assistant Attorneys General are
appointed by the Attorney General pursuant to Conn. Gen. Stat.
§ 3-125.

The Attorney General is responsible for general

supervision of all legal matters in which the state is an
interested party or in which the official acts and doings of
state officers are called into question.

Thus, the Assistant

Attorneys General fall under the general supervision of the
Attorney General for the State of Connecticut.
The defendants contend that defendant Strom has represented
Connecticut correctional officers and officials, including
defendant Bruno, in many cases involving religious claims by
inmates.

In representing the State of Connecticut Department of

Correction in civil actions against inmates, defendant Strom has

7

consulted with and offered advice to defendant Bruno.

The

defendants state that defendant Strom represented defendant Bruno
in another case involving a claim by an inmate seeking collective
worship as a member of the NGE, Brewer v. Arnone, Civil No.
3:11cv19(DFM).

The defendants argue that it was reasonable for

defendant Strom to receive communications from defendant Bruno
regarding the plaintiff’s requests for collective worship by the
NGE members because precisely the same issue was being litigated
in Brewer.

However, the communications here are dated from 2008

through 2011, but Brewer was not filed until January 1, 2011, and
defendant Strom did not appear on behalf of defendant Bruno in
Brewer until April 8, 2011.
The Second Circuit has held that providing advice to state
officials prior to litigation does not entitle an Attorney
General to absolute immunity.

See Blouin ex. Rel. Estate of

Pouliot v. Spitzer, 356 F.3d 348 (2d Cir. 2004) (“Even in the
investigative phase of a criminal case, advice by state
prosecutors warrants only qualified immunity. . . .

Since it

would be anomalous to extend absolute immunity to advice in the
civil context, but not the criminal context, we decline to take
that step.”)

Therefore, the court concludes that defendant Strom

has not met his burden of demonstrating that he is entitled to
absolute immunity for the period from December 2008 to April 7,
2011, when he was reviewing plaintiff’s requests and providing

8

advice to defendant Bruno.

However, as of April 8, 2011,

defendant Strom had entered his appearance on behalf of defendant
Bruno in Brewer, and any referrals of similar requests by the
plaintiff in this action to Attorney Strom and his advice
regarding those requests could be considered a traditional part
of defendant Strom’s role as an advocate for the State of
Connecticut Department of Correction.

As such, defendant Strom’s

conduct on and after April 8, 2011 is entitled to absolute
immunity.
Therefore, the motion to dismiss is being granted on the
ground of absolute immunity as to defendant Strom to the extent
that he reviewed plaintiff’s requests and advised defendant Bruno
regarding those requests on or after April 8, 2011.

The motion

is being denied on the ground of absolute immunity to the extent
that defendant Strom advised defendant Bruno regarding the
plaintiff’s religious exercise requests for the period of
December 2008 to April 7, 2011.
B.

Retaliation Claims

The defendants argue that the plaintiff’s claim that prison
officials transferred him from Garner to MacDougall in July 2009
in retaliation for his filing of requests and grievances seeking
collective worship as a member of the NGE is conclusory and
should be dismissed.
To state a retaliation claim, the plaintiff must show that

9

his conduct was protected by the Constitution or federal law and
that this protected conduct was a “substantial or motivating
factor” in the alleged retaliatory action by prison officials.
Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003).

Because

claims of retaliation are easily fabricated, courts consider such
claims with skepticism and require that they be supported by
specific facts; conclusory statements are not sufficient.

See

Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 2003).
The plaintiff asserts that defendants Bruno, Marcial,
Dzurenda, Strom and Calabrese transferred him to MacDougall in
July 2009 in retaliation for his requests to be permitted to
collectively worship and practice his religion as an NGE
adherent.

The plaintiff asserts no facts to support this claim

of retaliation.

The motion to dismiss is granted as to the

plaintiff’s retaliatory transfer claim.

The other claims of

retaliation remain.3
C.

Property Claims

The defendants argue that the plaintiff’s claims of property
loss or destruction fail to state a claim upon which relief may
be granted.

The plaintiff did not respond to this argument.

3

The plaintiff also alleges that the defendants’ decisions
to designate the NGE as a disruptive group and to deny him the
opportunity for congregate worship as well as the decisions to
deny him access to many volumes of The Five Percenter newspaper
were made in retaliation for his attempting to exercise his First
Amendment rights to file grievances and assert complaints.
10

The plaintiff alleges that many of the volumes of The Five
Percenter newspaper that prison officials at MacDougall rejected
were subsequently lost.

He claims that he contacted defendant

DeGennaro, MacDougall’s Mailroom Counselor Supervisor, about the
lost volumes, but he did not respond.

The plaintiff contends

that Department of Correction Advisor Anker failed to train and
supervise the mailroom employees with regard to handling rejected
publications and returning them to the publisher.

The plaintiff

asserts that he has been forced to spend approximately $20 every
time a volume of the newspaper is lost by correctional officials.
The Supreme Court has found that the Due Process Clause of
the Fourteenth Amendment is not violated when a prison inmate
loses personal belongings due to the negligent or intentional
actions of correctional officers if the state provides an
adequate post-deprivation compensatory remedy.

See Hudson v.

Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S.
527, 543 (1981).

The State of Connecticut provides an adequate

remedy for the kind of deprivation the plaintiff alleges.

See

State of Connecticut Department of Correction Administrative
Directive 9.6(16) (Oct. 1, 2011) (providing that Department of
Correction’s Lost Property Board shall hear and determine any
claim by an inmate who seeks compensation not to exceed $3,500
for lost or damaged personal property and that inmate may present
the property claim to the Claims Commissioner after the Board

11

denies the claim in whole or in part); Conn. Gen. Stat. § 4-141
et seq. (providing that claims for payment or refund of money by
the state may be presented to the Connecticut Claims Commission);
see also, e.g., S. v. Webb, 602 F. Supp. 2d 374, 386 (D. Conn.
2009) (finding Connecticut has sufficient post-deprivation
remedies for seizures of property by state officials).

This

state remedy is not rendered inadequate simply because the
plaintiff anticipates that he will obtain a more favorable remedy
in the federal court system or that it may take longer in the
state system before his case is resolved.

See Hudson, 468 U.S.

at 535.
The plaintiff has not alleged that the property claims
procedures of either the Office of the Claims Commissioner or the
Department of Correction are inadequate.

Therefore, the motion

to dismiss is being granted as to the property claims associated
with the alleged loss of volumes of The Five Percenter newspaper.
D.

Personal Involvement

Defendants Murphy, Dzurenda, LaJoie, Weir, Hynes, Marcial,
Rinaldi, Aldi, Frey, Farrell, Kelly, Boland, Beaudry, Corl,
DeGennaro, Manley, Paine and Walker argue that the claims against
them should be dismissed because the plaintiff has not alleged
their personal involvement in the alleged unconstitutional
conduct.

The plaintiff asserts that he has adequately alleged

the involvement of all remaining defendants.

12

To recover money damages under § 1983, the plaintiff must
show that these defendants were personally involved in the
constitutional violations.
873 (2d Cir. 1995).

See Colon v. Coughlin, 58 F.3d 865,

Supervisory officials cannot be held liable

under § 1983 solely for the acts of their subordinates.

See

Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).
The plaintiff may show personal involvement by demonstrating
one or more of the following: (1) the defendant actually and
directly participated in the alleged unconstitutional acts; (2)
the defendant failed to remedy a wrong after being informed of
the wrong through a report or appeal; (3) the defendant created
or approved a policy or custom that sanctioned objectionable
conduct which rose to the level of a constitutional violation or
allowed such a policy or custom to continue; (4) the defendant
was grossly negligent in supervising the correctional officers
who committed the constitutional violation; and (5) the defendant
failed to take action in response to information regarding the
occurrence of unconstitutional conduct.
873 (citation omitted).

See Colon, 58 F.3d at

In addition, the plaintiff must

demonstrate an affirmative causal link between the inaction of
the supervisory official and his injury.

See Poe v. Leonard, 282

F.3d 123, 140 (2d Cir. 2002).
In Iqbal, the Supreme Court found that a supervisor can be
held liable only “through the official's own individual actions.”

13

556 U.S. at 676.

This decision arguably casts doubt on the

continued viability of some of the categories for supervisory
liability.

The Second Circuit, however, has not revisited the

criteria for supervisory liability following Iqbal.

See Dow v.

Whidden, 557 Fed. Appx. 71, 73 n.1 (2d Cir. 2014); Grullon v.
City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).

Because it

is unclear whether Iqbal overrules or limits Colon, the court
will continue to apply the categories for supervisory liability
set forth in Colon.
1.

Supervisory Defendants

The defendants contend that defendants Peter Murphy,
Dzurenda, Frey, Farrell, LaJoie, Weir, Hynes, Rinaldi, Marcial
and Aldi are supervisory officials and that they cannot be held
liable for acts of their subordinates.
With respect to defendant Dzurenda, the plaintiff asserts
that he wrote to him on two occasions during the plaintiff’s
confinement at Garner regarding his need for collective worship.
Defendant Dzurenda responded to the plaintiff’s requests and
indicated that he had forwarded the requests to defendant
Calabrese for review and response.

Thus, the plaintiff has not

alleged that defendant Dzurenda failed to take action in response
to his requests for collective worship.

See Sealey v. Giltner,

116 F.3d 47, (2d Cir. 1997) (finding no personal involvement on
part of superintendent who referred one letter addressed to him

14

by plaintiff to another administrator for a decision and
responded to a second letter from plaintiff by indicating that
another administrator had issued a decision).
The plaintiff also alleges that he sent a letter to
defendant Marcial, Director of Programs and Treatment at Garner,
in November 2008.

Defendant Marcial forwarded the plaintiff’s

letter to defendant Bruno for review and response.

Defendant

Bruno made the plaintiff aware of this fact on November 16, 2008.
Thus, the plaintiff has not alleged that defendant Marcial failed
to take action in response to his requests for collective
worship.

See id.

As to defendant Rinaldi, on October 19, 2011, defendant
Bruno sent the plaintiff a letter informing him that his request
to purchase an NGE crown with tassels was denied for security
reasons.

The letter included a notation that a copy had been

sent to defendant Rinaldi, Acting Director of Programs and
Treatment.

On October 24, 2011, the plaintiff responded to

defendant Bruno’s letter.

The plaintiff sent letters to

defendants Bruno, Murphy, Strom, Aldi, Pitts and Boland.
plaintiff did not send a letter to defendant Rinaldi.

The

Therefore,

the plaintiff has not sufficiently alleged defendant Rinaldi’s
involvement in the alleged denial of his request for an NGE
crown.

Other than the fact that defendant Rinaldi’s name appears

on the letter sent by defendant Bruno to the plaintiff, there is

15

no other allegation that defendant Rinaldi was involved in or was
aware of the further investigation regarding the plaintiff’s
request to purchase an NGE crown.
Therefore, the motion to dismiss is being granted as to the
claims against defendants Dzurenda, Marcial and Rinaldi for
failure to allege personal involvement.
With respect to defendant Aldi, on November 4, 2011,
defendant Aldi responded to the plaintiff’s letter and informed
him that a group of officials would further investigate whether
he could purchase an NGE crown.

The plaintiff alleges that he

never received an answer to his request for an NGE crown.
With respect to defendant Frey, the plaintiff claims that he
was involved in the unlawful rejection of volumes of The Five
Percenter newspaper and also in responding to grievances that he
filed regarding the rejection of those newspaper volumes.

The

plaintiff has sufficiently alleged that defendant Frey was
involved in the violation of his First Amendment rights in
connection with the decisions to deny him access to The Five
Percenter newspaper.
With respect to defendant Farrell, the plaintiff alleges
that he wrote to defendant Farrell on two occasions during his
confinement at Garner.

In response, defendant Farrell denied the

plaintiff’s requests for televised NGE programming.

The

plaintiff claims that defendant Farrell failed to provide him

16

with access to collective worship or other religious programming
for his faith in violation of the First Amendment.

Therefore,

the plaintiff has alleged sufficient involvement of defendant
Farrell in violation of his First Amendment rights.
With respect to defendant Peter Murphy, the plaintiff claims
that defendant Peter Murphy was aware of his requests for
collective worship, his request to purchase an NGE crown, and the
unlawful rejections of The Five Percenter newspaper.

These

allegations are supported by letters and requests sent to
defendant Peter Murphy by the plaintiff about his religious
issues as well as defendant Peter Murphy’s responses to these
requests and letters.
With respect to defendant LaJoie, the plaintiff has alleged
sufficient involvement of defendant LaJoie in the plaintiff’s
requests for collective worship as defendant LaJoie responded to
the appeal of a grievance filed by the plaintiff addressing this
issue.
With respect to defendant Weir, the plaintiff has provided
evidence that defendant Weir was involved in the decision to
place the NGE on the Disruptive Group List as well as involved in
subsequent decisions to ban certain issues of The Five Percenter
newspaper that were sent to the plaintiff.
With respect to defendant Hynes, the plaintiff alleges that
he sent numerous letters and requests to him asking to be

17

permitted to engage in collective worship, but defendant Hayes
failed to respond to the letters or requests.

Attached to the

Amended Complaint are letters from defendant Bruno to the
plaintiff which include notations that copies of those letters
were sent to defendant Hynes.

Thus, the plaintiff has asserted

sufficient facts to show that defendant Hynes was aware of his
requests for collective worship at MacDougall and failed to take
action to resolve any constitutional violations related to those
requests that might have occurred.
Therefore, the motion to dismiss on the ground of lack of
personal involvement is being denied as to the § 1983 claims
against defendants Aldi, Frey, Farrell, Peter Murphy, LaJoie,
Weir and Hynes.
2.

Involvement of Subordinates

The defendants argue that the plaintiff has failed to allege
the personal involvement of defendants Beaudry, Kelly, Manley,
DeGennaro, Corl, Paine, Boland and Walker in the violations of
the plaintiff’s constitutional rights.

The defendants contend

that the failure to respond to a letter or a grievance is
insufficient to demonstrate the personal involvement of these
defendants in the alleged violations of the plaintiff’s First
Amendment rights.

The Second Circuit has held, however, that a

motion to dismiss on the ground of lack of personal involvement
should be denied if a plaintiff alleges that he sent a written

18

complaint to a correctional official because he is “entitled to
have the court draw the reasonable . . . inference that the
[official] in fact received the letter, read it and became aware
of the alleged conditions of which [the inmate] complained.”
Grullon, 720 F.3d at 141.
The plaintiff alleges that defendants Beaudry, Kelly, Manley
and Paine were involved in the decision to designate the NGE as a
disruptive group.

Defendants Kelly, DeGennaro, Manley, Corl and

Walker were involved in establishing the Media Review Board,
served on the Board and/or issued decisions to reject or ban
multiple volumes of The Five Percenter Newspaper.

The plaintiff

alleges that defendant Boland was involved in denying or
rejecting many grievances related to the plaintiff’s requests to
be permitted to worship collectively, the ban on his receipt of
volumes of The Five Percenter Newspaper, and the denial of his
request for an NGE crown.

The plaintiff has sufficiently alleged

the involvement of defendants Beaudry, Kelly, Manley, DeGennaro,
Corl, Paine, Boland and Walker in the violation of his First
Amendment rights.

Therefore, the motion to dismiss on the ground

of lack of personal involvement is being denied as to these
defendants.
D.

Qualified Immunity

The defendants argue that even if the plaintiff has
presented sufficient evidence to support a finding that they

19

violated his right to exercise his NGE beliefs when they
classified the NGE as a disruptive group, denied him the
opportunity to worship as a collective group and wear an NGE
crown, and rejected many volumes of The Five Percenter Newspaper,
they are entitled to qualified immunity.

The plaintiff argues

that the defendants were aware that the NGE was a religion and
was not a disruptive group and that qualified immunity is
inappropriate.
Qualified immunity “protects government officials ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’”

Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v, Fitzgerald,
457 U.S. 800, 818 (1982)).

To determine if an official is

entitled to qualified immunity, the court considers whether (1)
the facts alleged or shown by the plaintiff state a violation of
a statutory or constitutional right by the official and (2) the
right was clearly established at the time of the challenged
conduct.

See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)

(citation omitted).

A negative answer to either question means

that immunity from monetary damages claims is appropriate.
Pearson, 555 U.S. at 236.

See

The Supreme Court has held that

district courts have the discretion to choose which of the two
prongs of the qualified immunity standard to decide first in view

20

of the particular circumstances surrounding the case to be
decided.

See id. at 236.

Under the second prong, a right is clearly established if,
“at the time of the challenged conduct . . . every ‘reasonable
official would [have understood] that what he [was] doing
violate[d] that right.’” al-Kidd, 131 S. Ct. at 2083 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

There is no

requirement that a case have been decided which is directly on
point, “but existing precedent must have placed the statutory or
constitutional question beyond debate.”

Id.

“A broad general

proposition” does not constitute a clearly established right.
See Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012).

Rather,

the constitutional right allegedly violated must be established
“in a ‘particularized’ sense so that the ‘contours’ of the right
are clear to a reasonable official.”

Id. (quoting Anderson, 483

U.S. at 640).
The defendants argue that their decisions to designate the
NGE as a disruptive group, to deny the plaintiff’s request for
congregate worship, and to ban or restrict the plaintiff’s access
to The Five Percenter newspaper and to an NGE crown were not
objectively unreasonable in view of the law in effect at that
time.

The rights of an inmate to attend religious services and

receive religious literature were clearly established as of 2008.
See Cruz v. Beto, 405 U.S. 319 (1972) (per curiam); Mawhinney v.

21

Henderson, 542 F.2d 1, 3 (2d Cir. 1976); Burgin v. Henderson, 536
F.2d 501, 503 (2d Cir. 1976); Mukmuk v. Commissioner of Dep’t of
Corr. Servs., 529 F.2d 272, 275 (2d Cir. 1976) .
The defendants contend, however, that neither the Supreme
Court nor the Second Circuit had ruled on the constitutional
protection to be accorded the Five Percenter literature,
headwear, or collective worship.

In addition, the defendants

contend that the status of the NGE as a dangerous group was
unsettled.

See Marria v. Broaddus, No. 97Civ. 8297(NRB), 2004 WL

1724984, at *2 (S.D.N.Y. July 30, 2004) (supplementary
submissions by defendants support finding that permitting the NGE
to congregate would pose serious risk of group violence and that
the NGE “has been associated with violence in the New York prison
system by identifying specific large scale disturbances within
the last two decades in which Nation members were involved”);
Marria v. Broaddus, No. 97Civ.8297(NRB), 2003 WL 21782633 at *18
(S.D.N.Y. 2003) (finding defendants did produce some evidence
that “prison inmates identified as ‘Five Percenters’ have been
associated with instances of violence and disruption . . . [and]
that ‘the Five Percenters’ may somewhat uniquely connote both a
religion and a gang in the New York State prison system”)
(emphasis in original); Self-Allah v. Annucci, No. 97-607, 1999
WL 299310, at *9 (W.D.N.Y. Mar. 25, 1999) (“Defendants have
clearly shown that the Five Percenters act as an organized group

22

within the prison system to receive new members, intimidate
members of rival groups, and participate in criminal activity,
including extortion, robbery, assaults and drug trafficking.”);
Breland v. Goord, No. 94 CIV. 3696(HB), 1997 WL 129533, at *5-6
(S.D.N.Y. Mar. 27, 1997) (acknowledging that defendants’
evidentiary submissions “created the impression that inmates
associated with the Five Percenters have been involved in violent
disturbances and that some inmates are afraid of other inmates
identified as Five Percenters,” but denying summary judgment as
to First Amendment claim because issue of fact existed as to link
between banned religious material and the violent incidents of
the Five Percenters).
With respect to the plaintiff’s claim that the defendants
violated his right to exercise his religion when they denied him
the opportunity to engage in collective worship, the defendants
argue that their decision was in accord with the protocols
approved by a judge in a case involving the NGE in the Southern
District of New York.

See Marria, 2004 WL 1724984, at *2-3.

Because neither the Second Circuit, nor the Supreme Court has
held that the NGE is a religion or that its adherents have a
right to possess NGE literature or wear an NGE crown, it was not
unreasonable for the defendants to believe that designating the
NGE as a disruptive group, monitoring incoming NGE mail and
literature for safety and security reasons, and denying the

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plaintiff permission to engage in collective worship and wear an
NGE crown did not violate the law at the relevant time.

Thus,

the motion to dismiss is being granted with respect to the
plaintiff’s First Amendment claims against the defendants for
money damages on the ground of qualified immunity.
VI.

Conclusion
The Motion to Dismiss (Doc. 45) is GRANTED in part and

DENIED in part.

The motion is granted on the ground of absolute

immunity as to defendant Strom to the extent that he reviewed
plaintiff’s requests and advised defendant Bruno regarding those
requests on or after April 8, 2011, and is denied to the extent
that he advised defendant Bruno regarding the plaintiff’s
religious exercise requests from December 2008 until April 7,
2011.

The motion is granted as to as to the retaliatory transfer

claim against defendants Bruno, Marcial, Dzurenda, Strom and
Calabrese.

The motion is granted as to the plaintiff’s claims of

property loss associated with the alleged loss of volumes of The
Five Percenter newspaper against all defendants.

The motion is

granted as to First Amendment claims against defendants Dzurenda,
Marcial and Rinaldi in their individual capacities on the ground
of lack of personal involvement, and is denied as to defendants
Aldi, Frey, Farrell, Peter Murphy, Weir, Hynes, Beaudry, Kelly,
Manley, DeGennaro, Corl, Paine, Boland and Walker in their
individual capacities.

The motion is granted on the ground of
24

qualified immunity as to the First Amendment religion claims
against all defendants in their individual capacities.
The claims for retaliation4 against defendants Arnone,
Bruno, Peter Murphy, Frey, DeGennaro, Strom, LaJoie, Corl, Weir,
Beaudry, Pitts, Manley, Allen, Paine, Kelly, Walker, Boland,
Aldi, Perez, Hynes, Calabrese and Farrell in their individual
capacities and the claims for injunctive relief for violations of
the First Amendment and RLUIPA against defendants Arnone, Bruno,
Peter Murphy, Rinaldi, Frey, DeGennaro, Strom, LaJoie, Dzurenda,
Corl, Weir, Beaudry, Pitts, Manley, Allen, Paine, Kelly, Walker,
Marcial, Boland, Aldi, Perez, Hynes, Calabrese and Farrell in
their official capacities, and the causes of action under Conn.
Gen. Stat. § 52-571b and Article First, §§ 3, 14, 20 of the
Connecticut Constitution against defendants Arnone, Bruno, Peter
Murphy, Rinaldi, Frey, DeGennaro, Strom, LaJoie, Dzurenda, Corl,
Weir, Beaudry, Pitts, Manley, Allen, Paine, Kelly, Walker,
Marcial, Boland, Aldi, Perez, Hynes, Calabrese and Farrell in
their individual capacities remain.
It is so ordered.
Signed this 30th day of September 2014, at Hartford,
Connecticut.
/s/
Alvin W. Thompson
United States District Judge

4

See claims set forth in footnote 3.
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