Campanaro v. Leaming

Filing 7

PRISCS-INITIAL REVIEW ORDER, Answer deadline updated for Elizabeth C. Leaming to 6/22/2012., ( Discovery due by 10/22/2012, Dispositive Motions due by 11/22/2012). Signed by Judge Stefan R. Underhill on 3/21/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DEAN C. CAMPANARO,
Plaintiff,
PRISONER
CASE NO. 3:11-cv-1734(SRU)

v.
ELIZABETH C. LEAMING,
Defendant.

INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at MacDougall Correctional Institution in Suffield,
Connecticut (“MacDougall”), has filed a complaint pro se under 42 U.S.C. § 1983. The plaintiff
sues Assistant State’s Attorney Elizabeth C. Leaming.
On February 8, 2012, the court vacated its order granting the plaintiff leave to proceed in
forma pauperis and directed the plaintiff to pay the filing fee. The plaintiff paid the filing fee on
February 17, 2012. The plaintiff has filed a motion seeking a court order that any funds that were
previously withdrawn from his prisoner account by the Department of Correction to pay the filing
fee be returned to his prisoner account. The motion has been granted. The Clerk is directed to
contact the Connecticut Department of Correction and request that any funds collected from the
plaintiff’s inmate account pursuant to the plaintiff’s Prisoner Authorization Form be returned to the
plaintiff’s inmate account. No further funds shall be collected from the plaintiff’s prisoner account
pursuant to the Prisoner Authorization Form.
Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil complaints against
governmental actors and “dismiss ... any portion of [a] complaint [that] is frivolous, malicious, or
fails to state a claim upon which relief may be granted,” or that “seeks monetary relief from a
defendant who is immune from such relief.” Id. This requirement applies both where the inmate

has paid the filing fee and where he is proceeding in forma pauperis. See Carr v. Dvorin, 171 F.3d
115 (2d Cir. 1999) (per curiam). Rule 8 of the Federal Rules of Civil Procedure requires that a
complaint contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2).
Although detailed allegations are not required, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). A complaint that
includes only “‘labels and conclusions,’ ‘a formulaic recitation of the elements of a cause of action’
or ‘naked assertion[s]’ devoid of ‘further factual enhancement,’ ” does not meet the facial
plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).
Although courts still have an obligation to liberally construe a pro se complaint, see Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009), the complaint must include sufficient factual allegations to meet the
standard of facial plausibility.
On September 29, 2010, in the Superior Court for the Judicial District of Tolland, a judge
sentenced the plaintiff to a total effective sentence of thirty years, execution suspended after
fourteen years, followed by ten years of probation. See State v. Campanaro, No. TTDCR0893002,
2011 WL 500927 (Conn. Super. Ct. Oct. 3, 2011). Defendant Leaming then moved to destroy or
return all the original sources of evidence used during the prosecution. The court ordered that the
victims’ cellular telephone and laptop computer be returned to them and the plaintiff’s cellular
telephone and blackberry device be destroyed. Defendant Leaming also moved to have the
plaintiff’s desk-top computer returned to his children and former spouse. The plaintiff objected to
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the motion and asked that he be given an image or copy of the information contained on the hard
drive of his desk-top computer. On October 8, 2010, a superior court judge ordered defendant
Leaming to have the copy of the hard drive from the plaintiff’s desk-top computer made and
delivered to the plaintiff within three days.
On July 25, 2011, the plaintiff informed the same superior court judge that he had not
received a copy of the hard drive. Defendant Leaming claimed that the plaintiff’s trial attorney had
only requested copies of some photographs from the plaintiff’s computer. She informed the court
that the desk-top computer had been released from police custody and returned to the plaintiff’s
former spouse. In addition, the judge confirmed that the plaintiff’s lap top computer had been
destroyed.
The plaintiff claims that his desk-top computer contained information that he could have
used to challenge his conviction as well as other personal information, documents and photographs
The plaintiff sues the defendant in her individual capacity for violations of his Sixth Amendment
right to challenge his conviction on appeal or in a habeas petition and his Fourteenth Amendment
right to due process.
After careful consideration, the court concludes that these claims warrant service of the
complaint and an opportunity for plaintiff to address defendants’ response to the complaint.
ORDERS
The court enters the following orders:
(1)

The Sixth and Fourteenth Amendment claims shall proceed against the defendant in

her individual capacity. The Clerk is directed to contact the Connecticut Department of Correction
and request that any funds collected from the plaintiff’s inmate account pursuant to the plaintiff’s
Prisoner Authorization Form be returned to the plaintiff. No further funds shall be collected from
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the plaintiff’s prisoner account pursuant to the Prisoner Authorization Form.
(2)

Because the plaintiff has paid the filing fee to commence this action, he is

responsible for effecting service of the complaint. The plaintiff shall serve the complaint on the
defendant in her individual capacity in accordance with Rule 4, Fed. R. Civ. P., within 60 days from
the date of this order and file a return of service with the Court within 70 days from the date of this
order. The plaintiff is cautioned that if he fails to effect service within the time specified, the action
may be dismissed.
(3)

The Pro Se Prisoner Litigation Office shall send the plaintiff instructions on

serving a complaint and a Notice of Lawsuit and Waiver of Service of Summons form along
with a copy of this Order.
(4)

The defendant shall file her response to the complaint, either an answer or motion

to dismiss, within ninety (90) days from the date of this order. If the defendant chooses to file an
answer, she shall admit or deny the allegations and respond to the cognizable claims recited above.
She may also include any and all additional defenses permitted by the Federal Rules.
(5)

Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be

completed within seven months (210 days) from the date of this order. Discovery requests need
not be filed with the court.
(6)

All motions for summary judgment shall be filed within eight months (240 days)

from the date of this order.
(7)

Pursuant to Local Civil Rule 7(a), a non-moving party must respond to a dispositive

motion within twenty-one (21) days of the date the motion was filed. If no response is filed, or the
response is not timely, the dispositive motion can be granted absent objection.

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SO ORDERED at Bridgeport, Connecticut this 21st day of March 2012.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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