Marrero v. Weir et al
Filing
15
ORDER denying 4 Motion for Preliminary Injunction; denying 4 Motion for TRO; granting 11 Motion to Amend/Correct. Signed by Judge Robert N. Chatigny on 12/26/13. (Glynn, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
FREDDY MARRERO,
Plaintiff,
:
v.
:
WEIR, et al.
:
Defendants.
CASE NO. 3:13-cv-28(RNC)
:
ORDER
Plaintiff seeks leave to amend his complaint in accordance
with the Court’s order of July 10, 2013.
granted.
The motion to amend is
The amended complaint names the following defendants:
Director of Intelligence Kimberly Weir, Warden Chapdelaine,1
Captain Zawilinski, Captain J. Torres, Captain Beaudry, District
Administrator Quiros, Correctional Officer Lizon, and Lieutenant
Paine.
Upon review as required by 18 U.S.C. § 1915A, the Court
concludes that the amended complaint warrants service on
defendants Weir, Chapdelaine, Zawilinski, Torres, Beaudry, Lizon
and Paine as to plaintiff's § 1983 claims alleging violations of
the First Amendment, Eighth Amendment and Fourteenth Amendment
Due Process Clause.
The amended complaint is dismissed as to the
remaining claims and defendants.
Also pending is plaintiff’s motion for a temporary
1
Although the Warden's name is spelled Chaplin in the
caption of the case, the Court will use the correct spelling,
Chapdelaine, as submitted by defendants.
restraining order and preliminary injunction (ECF No. 4).
the reasons that follow.
For
The motion is denied, principally
because plaintiff has not alleged facts showing the injunctive
relief is necessary to prevent irreparable harm.
I. Plaintiff's Allegations
Plaintiff’s amended complaint alleges the following.
On
April 29, 2011, while incarcerated at Osborn Correctional
Institution (“Osborn”), plaintiff was accused of conspiracy to
convey contraband based on a recorded telephone conversation with
his mother on April 10, 2011.
In particular, he was accused of
conspiring to smuggle drugs into the prison in collaboration with
a correctional officer.
Plaintiff was also accused of attempting
to make a three-way call during another phone conversation with
his mother on April 8, 2011, which constitutes security
tampering.
Defendant Lizon reviewed the conversations and
submitted disciplinary reports, which defendant Torres reviewed
and approved.
Plaintiff was transferred to a restrictive housing unit,
strip searched, and placed on administrative detention.
Sometime
later, he was transferred to MacDougall-Walker Correctional
Institute ("MacDougall") where he was again placed on
administrative detention and his risk level was raised from 3 to
4.
Following investigation and a disciplinary hearing, plaintiff
was found guilty of conspiracy to convey contraband.
2
On June 9,
2011, Lizon issued another disciplinary report to the plaintiff
for security tampering, based on the attempted three-way
telephone call.
Torres reviewed and approved the report.
Plaintiff pleaded guilty to security tampering.
During the course of a continuing investigation into the
alleged conspiracy, in which defendants Weir, Zawilinski, Torres,
Beaudry and Paine were involved, plaintiff was asked to reveal
the name of the alleged co-conspirator correctional officer.
refused.
He
Plaintiff’s telephone privileges were revoked and his
mother was removed from his visiting list.
He was informed that
he might get these privileges back by cooperating with the
ongoing investigation; he continued to refuse to do so.
As of
the filing of the amended complaint, plaintiff's phone and
visiting privileges have not been restored.
II. Analysis
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.”
The plaintiff asserts that defendants
violated his right to association under the First Amendment, his
right to be free of cruel and unusual punishment under the Eighth
Amendment and his due process rights under the Fourteenth
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Amendment.
Upon review as required, the court concludes that
these claims shall proceed against defendants Weir, Chapdelaine,
Zawilinski, Torres, Beaudry, Lizon, and Paine in their individual
capacities and, to the extent plaintiff seeks injunctive or
declaratory relief, in their official capacities.
For the
reasons that follow, the complaint is dismissed as to the
remaining claims and defendants.
A. Claims Against Defendants in Official Capacities
To the extent the plaintiff seeks monetary damages against
the defendants in their official capacities, the claims are
barred by the Eleventh Amendment.
See Kentucky v. Graham, 473
U.S. 159 (1985); Quern v. Jordan, 440 U.S. 332, 342 (1979).
All
such claims are dismissed pursuant to 28 U.S.C. § 1915A(b)(2).
B.
Equal Protection Claims
The plaintiff claims that defendants violated his equal
protection rights when they accused him of conspiracy to convey
contraband, placed him on loss of phone privileges indefinitely,
removed his mother from his visiting list, and punished him for
not naming the alleged co-conspirator correctional officer.
To
state a valid “class of one" equal protection claim, plaintiff
must allege (1) that he has been intentionally treated
differently from others similarly situated, and (2) that there is
no rational basis for the difference in treatment.
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
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Village of
Plaintiff has
failed to identify any other individuals similarly situated to
him who have been treated differently by the defendants.
Thus,
the equal protection claims are dismissed.
C.
Fifth Amendment Claims
The Fifth Amendment applies to the federal government, not
the states.
See Dusenbery v. United States, 534 U.S. 161, 167
(2002) (Fifth Amendment's Due Process Clause protects citizens
only against federal government actors, not State officials);
Ambrose v. City of New York, 623 F. Supp. 2d 454, 466–67
(S.D.N.Y. 2009) (holding that any due process claim against the
city was “properly brought under the Fourteenth Amendment, not
the Fifth Amendment”).
Because the plaintiff has not alleged any
deprivation of his rights by the federal government, claims under
the Fifth Amendment are dismissed.
D. Claims Against Defendant Quiros
Plaintiff lists defendant Quiros in the caption of the
complaint but does not assert any facts relating to him in the
body of the complaint.
dismissed.
Therefore, the claims against Quiros are
See 28 U.S.C. § 1915A(b)(1).
III. Motion for Injunctive Relief
Plaintiff further requests a temporary restraining order and
a preliminary injunction requiring the defendants to restore his
telephone privileges and visitation with his mother.
To obtain
injunctive relief, the moving party must demonstrate "(1)
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irreparable harm in the absence of the injunction and (2) either
(a) a likelihood of success on the merits or (b) sufficiently
serious questions going to the merits to make them a fair ground
for litigation and a balance of hardships tipping decidedly in
the movant's favor."
Random House, Inc. v. Rosetta Books LLC,
283 F.3d 490, 491 (2d Cir. 2002).
"Such relief . . .
is an
extraordinary and drastic remedy, one that should not be granted
unless the movant, by a clear showing, carries the burden of
persuasion."
Moore v. Consol. Edison Co. of New York, Inc., 409
F.3d 506, 510 (2d Cir. 2005)."
Plaintiff fails to make the
required showing.
To demonstrate irreparable harm in the absence of an
injunction, plaintiff must show an "injury that is neither remote
nor speculative, but actual and imminent and that cannot be
remedied by an award of monetary damages."
Forest City Daly
Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 153 (2d
Cir. 1999) (internal quotation omitted).
Although the plaintiff
claims that he has been prohibited from making telephone calls or
visiting with his mother since April 2011, he has not alleged
that he is precluded from contacting his mother or others in
writing.2
Because alternate channels for communication exist,
2
Defendant Weir's affidavit confirms that "plaintiff may
mail out correspondence, to anyone, as long as the correspondence
does not contain or relate to contraband, illegal activities, or
contain coded language." Weir Aff. ¶ 31, July 29, 2013 (ECF No.
10, Ex. A).
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plaintiff has not demonstrated irreparable harm sufficient to
warrant preliminary injunctive relief.
See, e.g., Paulino v.
Menifee, No. 00CIV5719RCCKNF, 2001 WL 423207, at *2 (S.D.N.Y.
Mar. 9, 2001)(irreparable harm not shown when prisoner, who
sought reinstatement of telephone privileges in order to contact
his children, had alternate means of communication such as letter
writing and sending messages through others); Holbach v. Bertsch,
No. 1:09-CV-014, 2009 WL 1444733, at *3 (D.N.D. May 20, 2009)
(“There is nothing in [plaintiff’s] submissions to suggest that
he has been prejudiced in any irreparable way.
There are other
methods by which plaintiff can stay in contact with his son,
namely, writing letters, and there is no indication that the
‘phone block’ is permanent.”).
In addition, plaintiff has not shown a likelihood of success
on the merits.
Courts routinely hold that a prisoner's telephone
and visitation privileges may be limited.
See, e.g., Overton v.
Bazzetta, 539 U.S. 126, 134-36 (2003) (two-year ban on visitation
for inmates with two substance abuse violations did not
constitute cruel and unusual punishment; "[w]ithdrawing
visitation privileges is a proper and even necessary management
technique to induce compliance with the rules of inmate
behavior");
United States v. Footman, 215 F.3d 145, 155 (1st
Cir. 2000) ("Prisoners have no per se constitutional right to use
a telephone."); Graziani v. Murphy, No. 3:11-CV-1615(RNC), 2012
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WL 2785907 (D. Conn. July 5, 2012) ("Under Connecticut law,
visitation is viewed as a privilege, not an entitlement.").
Such
limitations are upheld when they are justified by legitimate
safety and security concerns, e.g. Ford v. Fischer, 9:09-CV723(DNH/ATB), 2011 WL 856416 (N.D.N.Y. Jan. 31, 2011) report and
recommendation adopted, 9:09-CV-723, 2011 WL 846860 (N.D.N.Y.
Mar. 9, 2011) (denial of visiting privileges justified by
legitimate penological interests when fiancee's privileges were
indefinitely suspended because of alleged smuggling of note from
another inmate and because of safety concerns), and when other
means of communication are available, e.g. Pitsley v. Ricks, 96CV-0372NAMDRH, 2000 WL 362023, at *5 (N.D.N.Y. Mar. 31, 2000)
("[p]rison regulations imposing restrictions on inmate phone
calls have generally been upheld," especially when alternate
means of communication, usually mail, are available).
In this case, the record shows that plaintiff was found
guilty of conspiracy to convey contraband and pleaded guilty to
security tampering, and defendants reasonably contend that the
restrictions imposed on him serve legitimate and related
penological interests, specifically safety, security, and keeping
contraband out of correctional facilities.
See Weir Aff. ¶¶ 44-
45, 48, July 29, 2013 (ECF No. 10, Ex. A).
Thus, plaintiff's
request for injunctive relief is denied.
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ORDERS
In accordance with the foregoing, it is hereby ordered:
(1) The Motion for Leave to File an Amended Complaint [Doc.
No. 11] is GRANTED.
The Clerk shall docket the amended complaint
attached to the motion to amend.
The fifth amendment claims,
equal protection claims, and all claims against defendant Quiros
are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
All other
claims will proceed against defendants Weir, Chapdelaine,
Zawilinski, Torres, Beaudry, Lizon and Paine in their individual
capacities and, to the extent plaintiff seeks injunctive or
declaratory relief, in their official capacities.
No other claims will be allowed except pursuant to an order
granting a properly filed motion for leave to file a second
amended complaint.
No such motion will be accepted by the Clerk
unless the defendants have appeared in the case and the plaintiff
certifies that the motion has been served on them.
The Motion for Temporary Restraining Order and Motion for
Preliminary Injunction [Doc. No. 4] is DENIED.
If plaintiff chooses to appeal this decision, he may not do
so in forma pauperis, because such an appeal would not be taken
in good faith.
See 28 U.S.C. § 1915(a)(3).
(2) Within fourteen (14) days of this Order, the U.S.
Marshals Service shall serve the summons, a copy of the Amended
Complaint and this Order on defendants Weir, Chapdelaine,
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Zawilinski, Torres, Beaudry, Lizon and Paine in their official
capacities by delivering the necessary documents in person to the
Office of the Attorney General, 55 Elm Street, Hartford, CT
06141.
(3) Within fourteen (14) days of this Order, the Clerk
shall ascertain from the Department of Correction Office of Legal
Affairs the current work addresses for defendants Weir,
Chapdelaine, Zawilinski, Torres, Beaudry, Lizon and Paine and
mail a waiver of service of process request packet to each
defendant in his or her individual capacity at his or her current
work address.
On the thirty-fifth (35th) day after mailing, the
Pro Se Office shall report to the court on the status of all
waiver requests.
If any defendant fails to return the waiver
request, the Clerk shall make arrangements for in-person service
by the U.S. Marshals Service and the defendant shall be required
to pay the costs of such service in accordance with Federal Rule
of Civil Procedure 4(d).
(4) The Clerk shall send a courtesy copy of the Amended
Complaint and this Order to the Connecticut Attorney General and
the Department of Correction Legal Affairs Unit.
(5) Defendants Weir, Chapdelaine, Zawilinski, Torres,
Beaudry, Lizon and Paine shall file their response to the Amended
Complaint, either an answer or motion to dismiss, within seventy
(70) days from the date of this order.
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If the defendants choose
to file an answer, they shall admit or deny the allegations and
respond to the cognizable claims recited above.
They may also
include any and all additional defenses permitted by the Federal
Rules.
(6) 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.
(7) All motions for summary judgment shall be filed
within eight months (240 days) from the date of this order.
(8) 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.
(9) If the plaintiff changes his address at any time
during the litigation of this case, Local Court Rule 83.1(c)2
provides that he MUST notify the court.
result in the dismissal of the case.
Failure to do so can
The plaintiff must give
notice of a new address even if he is incarcerated.
plaintiff should write “PLEASE NOTE MY NEW ADDRESS.”
The
It is not
enough to just put the new address on a letter without indicating
that it is a new address.
If the plaintiff has more than one
pending case, he should indicate the case numbers in the
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notification of change of address.
The plaintiff should also
notify the defendant(s) or the attorney for the defendant(s), if
appropriate, of his or her new address.
SO ORDERED at Hartford, Connecticut this 26th day of
December, 2013.
/s/
Robert N. Chatigny
United States District Judge
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