Kalican v. Dzurenda et al

Filing 32

RULING on Motion for Reconsideration ( 31 Objection filed by Kurtulus K. Kalican). Signed by Judge Stefan R. Underhill on 6/5/2015. (Freuden, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

KURTULUS K. KALICAN,
Plaintiff,
v.
JAMES E. DZURENDA, et al.,
Defendants.

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CASE NO. 3:12-cv-1009 (SRU)

RULING ON PLAINTIFF’S MOTION FOR RECONSIDERATION
On April 21, 2015, the Court entered a second Initial Review Order (the “Second Review
Order”) (doc. # 29) dismissing claims included in the original and amended complaints arising
from events occurring after March 15, 2009, but not considered in a prior order (the “First
Review Order”) filed in this case (doc. # 13). Judgment entered on April 29, 2015. The
plaintiff, Kurtulus K. Kalican, has filed an objection to the judgment (doc. #31). In the
objection, Kalican seeks reconsideration of the dismissal of the claims in Count Three of his
amended complaint. Accordingly, the Court considers the motion as a motion for
reconsideration.
Reconsideration will be granted only if the moving party can identify controlling
decisions or data that the court overlooked and that would reasonably be expected to alter the
court’s decision. See Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Any new
evidence must be “truly newly discovered or could not have been found by due diligence.”
Space Hunters, Inc. v. United States, 500 F. App’x 76, 81 (2d Cir. 2012). A motion for
reconsideration may not be used to relitigate an issue the court already has decided. See SPGGC,
Inc. v. Blumenthal, 408 F. Supp. 2d 87, 91 (D. Conn. 2006), aff’d in part and vacated in part on

other grounds, 505 F.3d 183 (2d Cir. 2007). The court strictly construes the rules permitting
reconsideration to avoid repetitive arguments on issues the court already has considered fully. In
re Adelphia Commc’n Corp. Sec. and Derivative Litig., No. 03-MD-1529(JMF), 2015 WL
268846, at *1 (S.D.N.Y. Jan. 21, 2015).

A motion for reconsideration “is not a vehicle for

relitigating old issues, presenting the case under new theories, securing a rehearing on the merits
or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (internal quotation marks omitted).
In his motion, Kalican concedes that the claims included in Counts One and Two are
time-barred. See Mot. for Reconsideration 1 (doc. # 31). He argues, however, that the claims
included in Count Three are timely. Kalican’s argument is misplaced. The court has considered
the merits of all claims based on incidents occurring after March 15, 2009 in either the First
Review Order or the Second Review Order. Thus, all of Kalican’s claims were dismissed on the
merits, not because they were untimely.
Nothing in Kalican’s motion alters the conclusion that the allegations in Count Three fail
on the merits. First, the Eleventh Amendment precludes an award of damages against state
officials in their official capacities; thus, there is no relief available against any of the other
defendants named in Count Three. Kalican concedes in his motion that to recover damages, he
was required to name the defendants in their individual capacities. See Mot. for Reconsideration
7. Because he failed to name most of the defendants in their individual capacities,
reconsideration of the dismissal of the claims against them is not warranted.
Second, the claims against the defendants sued in their individual capacities fail to state a
claim upon which relief may be granted. The only defendants in Count Three named in their
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individual capacities are defendants Dzurenda, Alves, Butrick and Donahue. There are no
allegations whatsoever against defendant Dzurenda. Defendant Butrick is referenced in
connection with Kalican’s claim for lost property and defendant Alves in Kalican’s claim for
denial of due process resulting in confinement in restrictive housing. The court considered and
dismissed those claims on the merits in the First Review Order and the dismissal was upheld on
appeal. See Mandate of USCA 2 (doc. # 28) (concluding that the district court properly
dismissed the due process and property claims).
Kalican states that he does not know what defendant Donahue’s duties are, but that she
failed to take action when he complained to her about Officer Sosause’s harassment on May 5,
2009. The court has determined that harassment is not cognizable under section 1983. Absent
an underlying constitutional violation, there is no basis for a claim against defendant Donahue
for failing to take action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (listing
criteria for supervisory liability which depend on underlying constitutional violation). Relief is
therefore denied with regard to the claims against defendants Dzurenda, Alves, Butrick and
Donahue.
Finally, even if Kalican had named the remaining defendants in their individual
capacities, the claims against them would still be dismissed. Kalican identifies four claims in his
motion: (1) the matter involving Officer Sosause beginning May 4, 2009; (2) the matter
involving disciplinary charges beginning July 7, 2009; (3) the matter involving the typewriter
and discrimination beginning December 6, 2009; and (4) the incident resulting in confinement in
restrictive housing beginning August 29, 2009.

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Kalican’s first claim involves his interactions with Officer Sosause beginning on May 5,
2009. The Court previously addressed those allegations and held that claims for harassment are
not cognizable under section 1983. Second Review Order 8-9. Kalican argues that Officer
Sosause’s actions were retaliatory. To state a retaliation claim, Kalican must show that his
actions were protected by the Constitution or federal law and that his protected conduct was a
“substantial or motivating factor” in the allegedly retaliatory conduct. Friedl v. City of New
York, 210 F.3d 79, 85 (2d Cir. 2000). Because claims of retaliation are easily fabricated, the
courts consider such claims with skepticism and require that they be supported by specific facts;
conclusory statements are not sufficient. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
To support a claim of retaliation, the allegedly retaliatory conduct must deter a similarly situated
inmate of ordinary resolve from exercising his constitutional rights. Gill v. Pidlpchak, 389 F.3d
379, 381 (2d Cir. 2004). Lesser conduct is considered de minimis and will not support a
retaliation claim. Prisoners are expected to tolerate more serious conduct than other persons
before stating a retaliation claim. Santiago v. Whidden, No. 3:10-cv-1839(VLB), 2012 WL
668996, at *6 (D. Conn. Feb. 29, 2012).
Although Kalican alleges that he engaged in protected conduct, he does not allege that
Officer Sosause was aware of that conduct. Kalican alleges that all interactions with Officer
Sosause after May 5, 2009 were retaliatory. Those conclusory allegations are insufficient to
convert harassment claims into retaliation claims. Further, the only allegation against Officer
Sosause that postdates May 5, 2009, is the incident on July 1, 2009, when Officer Sosause used
profanity, threw Kalican’s ID on the floor and ripped up his medical pass. Am. Compl. 42-43
(doc. # 11). Those actions are de minimis and would not deter an inmate of ordinary resolve
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from exercising constitutional rights. See, e.g., Mateo v. Alexander, No. 10 Civ.
8427(LAP)(DCF), 2012 WL 864805, at * 4 (S.D.N.Y. Mar. 14, 2012) (insulting, disrespectful or
hostile comments insufficient to support retaliation claim); Snyder v. McGinnis, No. 03-CV0902, 2004 WL 194972, at *11 (W.D.N.Y. Sept. 2, 2004) (deprivation of meals on two
occasions insufficient to support retaliation claim); Rivera v. Goord, 119 F. Supp. 2d 327, 340
(S.D.N.Y. 2000) (being shoved to ground on one occasion insufficient to support retaliation
claim). Kalican fails to allege a cognizable retaliation claim.
Kalican’s second claim relates to a disciplinary charge he received on July 7, 2009. The
only allegations in Count Three regarding July 2009 concern an encounter between Kalican and
Officer Sosause on July 1, 2009. Kalican alleges that Officer Sosause stopped him as he was
leaving the dining hall after breakfast and used profanity. When Kalican asked Officer Sosause
not to use profanity, Officer Sosause threw Kalican’s ID on the floor and ripped up Kalican’s
medical pass. After the encounter, Kalican proceeded to the medical department, took his
medication and returned to his cell. Kalican told Officer Guzman about the incident, but nothing
was done. Kalican does not allege that he received a disciplinary charge for this incident. Am.
Compl. 42-44. The court can discern no constitutional right that was violated.1
Kalican describes his third claim as involving use of a typewriter and stated that the
incidents began in December 2009. There are no references to any incidents occurring after
August 2009 in Count Three. In fact, the only reference to a typewriter in Count Three is a claim
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In his motion, Kalican includes allegations concerning a different encounter with Officer Sosause on the evening
of July 7, 2009. Mot. for Reconsideration 5. A motion for reconsideration is not a vehicle to amend the complaint
to include new claims. The court can consider new evidence only if the evidence is “truly newly discovered or
could not have been found by due diligence.” Space Hunters, 500 F. App’x at 81. Kalican has been aware of this
incident for nearly six years and provides no explanation for failing to include it in his complaint. This claim is not
properly before the court on a motion for reconsideration.

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entitled “Obstruction of Justice/Fundamental Fairness maken (sic) false statements Life, Liberty
or property interest.” Id. at 32. In support of this claim, Kalican merely states: “All the
correction officers statements about the typewriter.” Id. The court has held that Kalican has no
independent claim for a typewriter and determined that he failed to allege facts demonstrating an
actual injury to support a claim for denial of access to the courts based on the lack of a
typewriter. Second Review Order 9-10.
In his motion, Kalican refers to allegations regarding denial of a typewriter in May 2009,
a different claim than the one he seeks to reopen. He argues that he sought a typewriter because
was unable to afford paper and wanted the paper that was provided with the typewriter. Kalican
cannot convert a claim for denial of a typewriter to a claim for denial of paper in a motion for
reconsideration. See Analytical Surveys, 684 F.3d at 52 (cannot use motion for reconsideration
to take second bite of the apple by presenting new legal theories). In addition, Kalican fails to
allege facts showing an actual injury. He claims that a lack of paper in May and June 2009
prevented him from timely returning a signed complaint to the court in this case. This action was
filed in 2012, three years after the alleged lack of paper. The 2009 incident is unrelated to
Kalican’s failure to sign and return his complaint for four months in 2012. Kalican’s claim
regarding denial of a typewriter fails to state a claim.
In his motion, Kalican also addresses a First Amendment claim for interference with his
religious exercise. The court assumes that this argument is based on the allegation that in April
2009 Officer Sosause told Kalican that he could not go to the dining hall with his kufi in his
pocket. Although the Second Circuit has not determined whether an inmate must make a
threshold showing that the disputed conduct substantially burdened his sincerely held religious
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beliefs to state First Amendment free exercise claim, Holland v. Goord, 758 F.3d 215, 220-21
(2d Cir. 2014), there must be some burden on religious beliefs to support a First Amendment
claim. Id. at 222. Kalican alleges in Count Three that he only wore the kufi to religious
services. Am. Compl. 41. He was not prevented from doing so. There are no facts alleged in
Count Three suggesting that being prohibited on one occasion from carrying his kufi to the
dining hall in his pocket in any way burdened Kalican’s ability to exercise his religion. Thus, he
fails to allege facts to support a cognizable First Amendment free exercise claim.
Kalican’s motion for reconsideration (doc. #31) is GRANTED but the relief requested is
DENIED.
SO ORDERED at Bridgeport, Connecticut, this 5th day of June 2015.

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

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