Roman v. Calderon et al

Filing 11

PRISCS-INITIAL REVIEW ORDER DISMISSING 10 Amended Complaint filed by Neftali R. Roman, ( Motion to Reopen and Proposed Amended Pleadings due by 4/30/2013) Signed by Judge Janet Bond Arterton on 4/9/2013.(Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

NEFTALI R. ROMAN,
Plaintiff,

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v.
WARDEN SEMPLE, et al.,
Defendants.

PRISONER
CASE NO. 3:12-cv-1707(JBA)

INITIAL REVIEW ORDER
Pursuant to the court’s January 3, 2013 order, the plaintiff
has filed an amended complaint pro se under 42 U.S.C. § 1983
(2000).

He names as defendants Warden Semple, Counselor

Calderon, Unit Manager Captain Angelopollis, Deputy Warden
Falcone, Correctional Officer Lopez, Lieutenant Comacho, Mailroom
Clerk Adams and Correctional Officer Diaz.

As the plaintiff only

seeks damages, the court assumes that all defendants are named
only in their individual capacities.
I.

Standard of Review
Under 28 U.S.C. § 1915A (2000), the court must review

prisoner civil complaints and dismiss any portion of the
complaint that is frivolous or malicious, that 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.

In

reviewing a pro se complaint, the court must assume the truth of
the allegations, and interpret them liberally to “raise the

strongest arguments [they] suggest[].”
636, 639 (2d Cir. 2007).

Abbas v. Dixon, 480 F.3d

Although detailed allegations are not

required, the complaint must include sufficient facts to afford
the defendants fair notice of the claims and the grounds upon
which they are based and to demonstrate a right to relief.
Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
allegations are not sufficient.
678 (2009).

Conclusory

Ashcroft v. Iqbal, 556 U.S. 662,

The plaintiff must plead “enough facts to state a

claim to relief that is plausible on its face.”
U.S. at 570.

Bell

Twombly, 550

But “‘[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.’”

Boykin v. KeyCorp., 521 F.3d 202, 214 (2d

Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
II.

Allegations
In the order to amend, the court noted that the plaintiff

had not alleged facts suggesting that any defendant was
responsible for the general statements in the complaint.

The

court also explained that claims of verbal harassment were not
cognizable in a section 1983 action and that claims against
supervisory officials are not cognizable without a demonstration
of an affirmative link between the actions of the supervisory
official and the plaintiff’s injury.

The court also noted that,

although the plaintiff alleged the denial of paper, pens,

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envelopes, notary services and legal calls, he completed his
complaint, had it notarized and mailed it to the court.

See Doc.

#9.
In response to the court’s order, the plaintiff alleges that
defendant Calderon, the Unit Counselor, is responsible for
providing legal calls, hygiene supplies, copies and access to a
notary, pens, papers and envelopes for indigent inmates.
Defendant Calderon has refused to provide these items and
services to the plaintiff.
grievance coordinator.

Defendant Calderon also is the

In that capacity, defendant Calderon had

not responded to several of the plaintiff’s grievances.

When the

plaintiff complained to defendant Angelopollis, defendant
Calderon’s supervisor, he was directed to address the matter with
defendant Calderon.

Defendants Semple and Falcone have not

responded to the plaintiff’s letters regarding this impasse.
The plaintiff also alleges that his mail, both incoming and
outgoing, regular and legal, is being tampered with.

Outgoing

mail does not reach its intended destination and correctional
staff does not respond to his inquiries.

The plaintiff alleges

that defendant Semple determined which inmates’ mail is reviewed.
The plaintiff alleges that defendants Calderon and Adams are the
ones actually tampering with his mail, but notes that defendants
Angelopollis, Semple, Falcone, Comacho, Diaz and Lopez also have
access to prisoner mail.

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Finally, the plaintiff alleges that defendants Comacho,
Diaz and Lopez have made threats and racial comments toward him
and that all of the defendants have been judging him based on his
race, sexual orientation and criminal history.
III. Analysis
A.

Verbal Harassment and Judgment

Despite the court’s explanation that claims of verbal
harassment were not cognizable in a section 1983 action, the
plaintiff has included the same allegation in his amended
complaint.

The claim for verbal harassment against defendants

Comacho, Diaz and Lopez is dismissed pursuant to 28 U.S.C. §
1915A.

See Purcall v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)

(holding that claims of verbal harassment without accompanying
injury do rise to the level of Eighth Amendment violations).
The plaintiff states in conclusory fashion that all of the
defendants judge him based on race, sexual orientation and
criminal history.
statement.

The plaintiff alleges no facts to support this

Such conclusory statements are insufficient to afford

the defendants fair notice of the claim and the grounds upon
which it is based.
plausible claim.

Thus, this statement fails to set forth a
Any claim of discriminatory judgment is

dismissed pursuant to 28 U.S.C. § 1915A.
at 555-56, 570.

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See Twombly, 550 U.S.

B.

Response to Grievances

The plaintiff alleges that defendant Calderon failed to
respond to his grievances.

Although the First Amendment right to

petition the government for redress of grievances protects a
plaintiff’s right to file a grievance complaining that a prison
official has wronged him, it does not require that someone
respond to the grievance.

Thus, the plaintiff has no

constitutionally protected right to receive a response to his
grievance.

See, e.g., Hayes v. County of Sullivan, 853 F. Supp.

2d 400, 434 (S.D.N.Y. 2012) (prisoner has no constitutional right
to prison grievance procedure or to have his grievance
investigated).

This claim against defendant Calderon is

dismissed pursuant to 28 U.S.C. § 1915A.
C.

Denial of Hygiene Items

The plaintiff also alleges that defendant Calderon denied
him hygiene products.

The denial of hygiene products for a

limited period does not rise to the level of a constitutional
violation.

See, e.g., Silber v. Pallito, No. 1:09-CV-73, 2011 WL

1225594, at *10 (D. Vt. Feb. 7, 2011) (temporary denial of basic
toiletries does not violate the Eighth Amendment (citing cases)),
recommended ruling adopted as modified in other respects, 2011 WL
1225588 (D. Vt. Mar. 31. 2011); Fernandez v. Armstrong, No.
3:02CV2252, 2005 WL 733664, at *5 (D. Conn. Mar.30, 2005) (denial
of hygiene items including a toothbrush, toothpaste, soap, and

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shampoo for a period of sixteen days does not allege a violation
of Eighth Amendment rights (citations omitted)).
D.

Mail Tampering / Denial of Access to the Courts

The denial of paper, pens, copies, envelopes and notary
services is cognizable as a denial of access to the courts.

The

plaintiff’s claim of interference with his legal mail also falls
in this category.

See Davis v. Goord, 320 F.3d 346, 351 (2d Cir.

2003) (interference with legal mail implicates a prisoner’s right
of access to the courts).

To state a claim for denial of access

to the courts, the plaintiff must allege facts showing that the
defendant “took or was responsible for actions that hindered
[his] efforts to pursue a legal claim.”
marks and citations omitted).

Id. (internal quotation

The plaintiff must demonstrate an

actual injury, such as the dismissal of an otherwise meritorious
legal claim because of the defendants’ actions.
Casey, 518 U.S. 343, 353 (1996).

See Lewis v.

The plaintiff has not alleged

any facts suggesting that he suffered an actual injury.

In fact,

the court noted in the order to amend that the plaintiff had the
ability to file his complaint in this action without apparent
difficulty.

Accordingly, the claims for denial of access to the

courts are dismissed without prejudice pursuant to 28 U.S.C. §
1915A.
Although non-legal mail is protected under the First
Amendment, it is afforded less protection than legal mail and

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isolated incidents of mail tampering are not cognizable under
section 1983.

See Edwards v. Horn, No. 10 Civ. 6194(RJS)(JLC),

2012 WL 760172 at *7 (S.D.N.Y. Mar. 8, 2012).

The plaintiff

fails to allege sufficient facts to demonstrate a plausible claim
for interference with his non-legal mail.

Accordingly, this

claim is dismissed without prejudice.
ORDERS
In accordance with the foregoing analysis, the court enters
the following orders:
The amended complaint is DISMISSED pursuant to 28

(1)

U.S.C. § 1915A.
(2)

The plaintiff may file a motion to reopen along with a

proposed second amended complaint.

The proposed second amended

complaint may include only the following claims:

the claim

against defendant Calderon for denial of hygiene products and
paper, pens, copies and envelopes and the claim of mail
tampering.

The plaintiff must include specific allegations

regarding these claims including, but not limited to, specific
examples of mail tampering, dates on which the alleged tampering
occurred, the dates during which hygiene products were denied,
and how each defendant was involved in the specific incidents.
The plaintiff must include allegations satisfying the
deficiencies in each of these claims outlined above, such as
facts showing that he suffered an actual injury to support the
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claims for denial of access to the courts.

Any motion to reopen

and proposed second amended complaint shall be filed within
twenty-one (21) days from the date of this order or by April 30,
2013.

If the court has not received a motion to reopen and

proposed second amended complaint within the specified time, the
case will be dismissed without prejudice.
SO ORDERED this 9th day of April 2013, at New Haven,
Connecticut.
/s/
Janet Bond Arterton
United States District Judge

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