Marrero v. Weir et al

Filing 31

ORDER granting 22 Motion to Dismiss. See attached Ruling for further detail. Signed by Judge Robert N. Chatigny on 9/26/2014. (Rickevicius, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FREDDY MARRERO,

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Plaintiff,
V.
WEIR, et al.,
Defendants.

CASE No. 3:13-CV-0028(RNC)

RULING AND ORDER
Plaintiff Freddy Marrero brings this action pro se and in
forma pauperis under 28 U.S.C. § 1983 against personnel of the
Connecticut Department of Correction alleging violations of his
rights under the First, Eighth and Fourteenth Amendments.
Defendants have moved to dismiss all claims for lack of subject
matter jurisdiction and failure to state a claim on which relief
may be granted.

(ECF No. 22).

For reasons that follow, the

motion to dismiss is granted.
I. Background
The amended complaint alleges the following.

On April 29,

2011, while incarcerated at Osborn Correctional Institution
("Osborn"), plaintiff was accused of conspiring with a
correctional officer to smuggle contraband into the facility.

He

was strip searched, transferred to MacDougall-Walker Correctional
Institution, and placed in administrative detention.

The

allegation that plaintiff had conspired with a correctional
officer to smuggle drugs into Osborn arose from a recorded
1

telephone conversation between the plaintiff and his mother on
April 10, 2011.
On May 6, 2011, plaintiff met with Captain Beaudry, who
asked him to disclose the name of the officer with whom he had
conspired to bring drugs into Osborn; plaintiff denied knowledge
of any conspiracy.

On May 10, 2011, plaintiff met with Captain

Zawilinski and a state police officer.

Zawilinski told plaintiff

that he would be transferred out of restrictive housing if he
revealed the name of the officer bringing drugs into Osborn.
¶ 18.

Id.

Plaintiff again denied knowledge of any such activity.

Zawilinski threatened that the state police were going to arrest
plaintiff and his mother, then played a tape of the April 10
telephone conversation, explaining that the conversation appeared
to be about drugs.

Lieutenant Torres entered the room and

attempted to induce plaintiff to help himself by cooperating with
the investigation; when plaintiff refused, Torres responded: “I
will personally make the rest of your bid [time] hard for you.”
On May 25, 2011, plaintiff received a disciplinary report
for conspiracy to convey contraband.

The report, prepared by

Officer Lizon, stated that the April 10 conversation demonstrated
that plaintiff was working with a staff member to smuggle
suboxone pills into Osborn.

Plaintiff was informed that his

nephew was sent to prison as a result of his alleged involvement
in the smuggling.

On June 17, 2011, following a hearing at which

2

plaintiff appeared but declined an advocate, plaintiff was found
guilty of conspiracy to convey contraband and given fifteen days
time served in restrictive housing, sixty days loss of phone
privileges, and thirty days loss of recreation.
On June 9, 2011, plaintiff received a second disciplinary
report for security tampering, based on an attempted three-way
telephone call during a different phone conversation with his
mother on April 8, 2011.
this charge.

Plaintiff apparently pleaded guilty to

See Disciplinary Process Summary Report, Exh. E,

Defs.’ Opp, to Mot. for Prelim. Inj., at *86 (ECF No. 10).
After learning from his mother that she was not on his
visiting list, plaintiff wrote to the visiting clerk on September
23, 2011, requesting that a visiting form be mailed to his
mother.

On October 10, 2011, he was notified that his mother was

denied approval to visit him.

He subsequently received a message

from Warden Murphy explaining: “[Y]ou know why your mother isn’t
on the list.

I have no control over this issue, only you do.”

Plaintiff submitted a number of complaints to Beaudry concerning
the restriction on his visitation privileges but all of them went
unanswered.

Plaintiff’s phone privileges also were not restored

because the investigation into drug smuggling remained open.
In mid-December 2011, plaintiff was summoned to meet with
Paine and Beaudry, who informed him that it was in his best
interest to talk to Zawilinski.

Paine threatened to send

3

plaintiff to restrictive housing pending another investigation.
Zawlinski joined the meeting by speakerphone and asked plaintiff
for the name of the correctional officer that was smuggling drugs
into Osborn, offering to reinstate his phone and visitation
privileges if he cooperated.

Plaintiff again denied knowledge of

any smuggling.
On January 15, 2013, plaintiff wrote a letter to thenCommissioner Arnone complaining that his phone pin number had not
been reactivated and visitation privileges with his mother had
not been restored.

Defendant Weir, Director of Security,

responded:
“As you know, you were involved in an investigation conducted
by this office and as a result of our findings and your
unwillingness to cooperate with the investigation, certain
sanctions were imposed. At that time, you were made aware of
the sanctions and the reason why. You were also informed that
as soon as you are willing to cooperate with this office, we
will begin to reduce/lift some of the sanctions. If you are
considering doing so, please contact this office.” Ex. Q at
*40, Appendix A, Defs.’ Mot. to Dismiss (ECF No. 22-3).
As of the time the amended complaint was filed on July 25, 2013,
plaintiff’s phone and visitation privileges had not been
restored.
II. Analysis
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
4

U.S. 544, 570 (2007)).

In deciding a motion to dismiss, well-

pleaded facts must be accepted as true and considered in the
light most favorable to the plaintiff.
106, 111 (2d Cir. 2007).

Patane v. Clark, 508 F.3d

"While pro se complaints must contain

sufficient factual allegations to meet the plausibility standard,
the court is obliged to read pro se submissions with special
solicitude and to interpret them to raise the strongest arguments
that they suggest."

Sealey v. Affiliated Computer Servs., Inc.,

522 F. App'x 35, 36 (2d Cir. 2013) (citations omitted).
A. Eighth Amendment Claims
Defendants have moved to dismiss plaintiff’s Eighth
Amendment claims on the ground that the amended complaint does
not allege cruel and unusual punishment.

Plaintiff alleges that

his Eighth Amendment rights have been violated because he has
been improperly deprived of phone and visitation privileges and
because he was transferred, placed in administrative detention
and subjected to additional discipline despite insufficient
evidence.

I agree with defendants that these allegations are

insufficient to state an Eighth Amendment claim.
The Eighth Amendment requires prison officials to provide
for prisoners' "basic human needs – e.g., food, clothing,
shelter, medical care, and reasonable safety."

DeShaney v.

Winnebago Cty Dep't. of Social Servs., 489 U.S. 189, 200 (1989).
Conditions of confinement can give rise to an Eighth Amendment

5

violation if (1) the deprivation is sufficiently serious and (2)
the officials involved in the deprivation act with deliberate
indifference to inmate health or safety.
F.3d 180, 185 (2d Cir. 2002).

Phelps v. Kapnolas, 308

The first element is satisfied

when prison conditions violate contemporary standards of decency;
the second element is satisfied when correctional officials are
aware of and disregard a substantial risk of serious harm.

See

Riddick v. Arnone, 3:11CV631 SRU, 2012 WL 2716355, at *5 (D.
Conn. July 9, 2012), appeal dismissed (Jan. 16, 2013).

Here,

neither element is met.
Plaintiff does not allege a deprivation that is sufficiently
serious to support a claim under the Eighth Amendment, such as
the "'unnecessary and wanton infliction of pain'" or
"'deprivations denying the minimal civilized measures of life's
necessities.'"

Rivera v. Senkowski, 62 F.3d 80, 85 (2d Cir.

1995) (quoting citing Wilson v. Seiter, 501 U.S. 294, 303
(1991)).

To the extent he relies on the indefinite withholding

of his phone privileges and visitation with his mother, his claim
is unavailing notwithstanding his assertions that these sanctions
were unsupported by evidence, in excess of sanctions outlined in
the Code of Penal Discipline, and imposed on him coercively in an
effort to force him to provide information about an alleged coconspirator.

"[L]oss of privileges, in general, does not amount

to infliction of cruel and unusual punishment; and loss of

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visitation and telephone privileges is no exception to this
rule."

Thrower v. N.J. Dep't of Corr., CIV A 07-3434 FSH, 2007

WL 2683007, at *4 (D.N.J. Sept. 7, 2007); see id. (visitation
contacts do not qualify as necessities, such as adequate food,
clothing, shelter, sanitation, medical care and personal safety);
see also Overton v. Bazzetta, 539 U.S. 126, 137 (2003)
(withdrawal of visitation privileges for a limited period as a
regular means of effecting prison discipline does not constitute
a dramatic departure from accepted standards for conditions of
confinement); Zimmerman v. Burge, 06CV0176(GLS-GHL), 2008 WL
850677, at *3 (N.D.N.Y. Mar. 28, 2008) (ongoing and indefinite
restriction on contact visits not cruel and unusual punishment);
Hernandez v. McGinnis, 272 F. Supp. 2d 223, 228 (W.D.N.Y.
2003)(roughly three-year suspension of visitation rights not an
Eighth Amendment violation; the revocation, which was not
permanent or arbitrary, served a legitimate purpose of deterring
visit-related misconduct and did not dramatically depart from
accepted standards for conditions of confinement, create inhumane
conditions, or otherwise constitute cruel and unusual
punishment); Castillo v. FBOP FCI Fort Dix, 221 F. App'x 172,
175-76 (3d Cir. 2007) (two-year loss of telephone and visitation
privileges did not constitute the excessive punishment or extreme
deprivation prohibited by the Eighth Amendment); Daniel v.
Chesney, CIV.A. 1:CV-04-300, 2005 WL 2674543 (M.D. Pa. Oct. 20,

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2005) (deprivations of privileges including radios, televisions,
weekly phone calls, and regular commissary, among other
amenities, insufficient to support an Eighth Amendment claim of
cruel and unusual punishment).

Further, the allegations in the

amended complaint do not suggest that the named defendants acted
with deliberate indifference to a substantial risk of serious
harm.
To the extent plaintiff's claims under the Eighth Amendment
are based on his transfer and placement in administrative
detention, the claims do not provide a basis for relief.

An

inmate has no constitutional right to avoid transfer to a
different facility.
265 (D. Conn. 2008).

See Jarecke v. Hensley, 552 F. Supp. 2d 261,
Moreover, applicable administrative

directives permit placement in administrative detention pending
an investigation, see Administrative Directive 9.4 ¶ 3.A.2, and
plaintiff does not allege that he was deprived of any required
review of his placement in administrative detention.

Nor does he

challenge the conditions of confinement he faced while in
administrative detention; in particular, he does not assert that
he was denied "the minimal civilized measures of life's
necessities" such that the Eighth Amendment is implicated.
B. Fourteenth Amendment Due Process Claims
Plaintiff alleges that Torres, Beaudry, Lizon, Paine and
Zawilinksi "allowed [him] to be disciplined," including loss of

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good time credits and the ability to earn them, after he had been
found guilty of conspiracy to convey contraband, even though the
investigation was still ongoing.
71.

See Am. Cmpl. (ECF No. 16) ¶

Second, he challenges the indefinite loss of his phone and

visitation privileges, a sanction not in any administrative
directive, allegedly imposed despite a lack of evidence against
him and without notice, a hearing, or a chance to appeal the
sanctions.

See Am. Cmpl. (ECF No. 16) ¶¶ 73, 75.

Defendants

move to dismiss these claims on the grounds that plaintiff does
not have a constitutional right to the privileges in question and
that he received all the process he was due.

I agree that the

claims should be dismissed.
To state a claim for relief based on deprivation of the
right to procedural due process, plaintiff must allege facts
showing: (1) that he had a protected liberty interest, and (2)
that he was deprived of that interest without the process
required by the Constitution.
597 (2d Cir. 2000).

See Cruz v. Gomez, 202 F.3d 593,

Plaintiff’s allegations fall short with

regard to both requirements.1
1

The amended complaint does not refer to substantive due
process, which prohibits the government from depriving a person
of liberty in a way that shocks the conscience. To the extent
it can be construed to include such a claim, the claim is
unavailing. "Convicted prisoners . . . receive no greater
protection from the substantive due process clause than they
receive from the Eighth Amendment." Mele v. Connecticut,
3:06CV1741 (SRU), 2007 WL 445488, at *2 (D. Conn. Feb. 9, 2007).
For the reasons stated in the text, the amended complaint does
not state a claim for unconstitutional conditions of confinement
9

Restrictions on an inmate’s phone and visitation privileges
are upheld when they are justified by legitimate safety and
security concerns and other means of communication are available.
Plaintiff’s allegations show that the restrictions imposed on him
meet this standard.

Plaintiff was found guilty of conspiracy to

convey contraband into the correctional facility.

The loss of

phone and visitation privileges resulted from that finding and
from his unwillingness to cooperate in a related investigation.
The restrictions on his privileges did not preclude him from
communicating by other means.

The defendants offered to restore

his privileges if he cooperated with their investigation. In
these circumstances, the withholding of his phone and visitation
privileges did not violate his due process rights.

See Santos v.

Bureau of Prisons, 1:05-CV-0008, 2006 WL 709509, at *2 (M.D. Pa.
Mar. 20, 2006) (citing Sandin, 515 U.S. at 483); see also
Atkinson v. Willingham, 3:05-CV-673 (RNC), 2007 WL 685168, at *5
(D. Conn. Mar. 3, 2007) (temporary loss of visiting privileges
does not implicate protected liberty interest); Griffin v.
Cleaver, 3:03CV1029(DJS)(TPS), 2005 WL 1200532, at *6 (D. Conn.
May 18, 2005) (plaintiff had no constitutional right to telephone
use, social visits and commissary privileges, therefore such
sanctions did not support a claim for denial of due process);
Hall v. McCabe, CA 8:11-1317-TLW-JDA, 2011 WL 5083219, at *2
(D.S.C. July 8, 2011) report and recommendation adopted, CIV.A.
under the Eighth Amendment.
10

8:11-1317-TLW, 2011 WL 5082201 (D.S.C. Oct. 25, 2011) (no
constitutionally protected liberty interest implicated in loss of
canteen, telephone and visitation privileges for 540 days).
Plaintiff's claim that he was wrongfully deprived of the
ability to earn good time credits fails because he does not have
a protected liberty interest in future good time credit.

See

Abed v. Armstrong, 209 F.3d 63, 66-67 (2d Cir. 2000) ("Although
inmates have a liberty interest in good time credit they have
already earned, no such interest has been recognized in the
opportunity to earn good time credit where, as here, prison
officials have discretion to determine whether an inmate or class
of inmates is eligible to earn good time credit."); Joyce v.
Hanney, 3:05CV1477 (WWE), 2009 WL 563633, at *6 (D. Conn. Mar. 4,
2009) ("Connecticut courts have held that a liberty interest is
created only when an inmate loses previously earned good time
credit; the loss of the ability to earn good time credit in the
future does not create a liberty interest.").
To the extent plaintiff seeks restoration of good time
credits that he had already earned, his claim fails because,
although "prisoners do have a constitutional right to good-time
credits that have already been earned . . . § 1983 is not the
proper vehicle . . . to seek redress."

Ebron v. Lantz,

3:04CV1375MRK, 2006 WL 18827, at *3 (D. Conn. Jan. 4, 2006).

The

Supreme Court has held that, if a determination favorable to the

11

plaintiff in a section 1983 action “would necessarily imply the
invalidity of his conviction or sentence,” the plaintiff must
prove that the conviction or sentence has been reversed on direct
appeal or declared invalid before he can recover damages under
section 1983.

Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).

This same rule applies to challenges used in prison disciplinary
proceedings when the inmate has forfeited good time credit as a
disciplinary sanction.
644–47 (1997).

See Edwards v. Balisok, 520 U.S. 641,

“[A]n inmate's sole judicial remedy for

restoration of good time credits is a writ of habeas corpus.”
Laws v. Cleaver, 140 F. Supp. 2d 145, 153–54 (D. Conn. 2001).
Any remaining due process claim related to the finding of
guilty on the disciplinary report for conspiracy to convey
contraband fails because plaintiff appears to have received all
the process he was due.

Plaintiff does not challenge the process

the led to the guilty finding and the exhibits show that he
received the requisite process.

In a prison disciplinary

hearing, "[i]nmates are entitled to advance written notice of the
charges; a fair and impartial hearing officer; a reasonable
opportunity to call witnesses and present documentary evidence;
and a written statement of the disposition, including supporting
facts and reasons for the action taken."
481, 487 (2d Cir. 2004).

Luna v. Pico, 356 F.3d

Here, plaintiff received a copy of the

disciplinary report, including a description of the violation, on

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the day it was issued.

Disciplinary Report, Ex. A at *4,

Appendix A, Defs.’ Mot. to Dismiss (ECF No. 22-3).

According to

the Disciplinary Process Summary Report, he received a hearing on
June 17, 2011, at which he declined an advocate and did not
present any witnesses.

Disciplinary Process Summary Report, Ex.

C at *9-10, Appendix A, Def.’s Mot. to Dismiss (ECF No. 22-3).
He received a written statement of the disposition, including
supporting facts and reasons.

Id.

He has not sued the hearing

officer and there is no allegation that the officer acted
improperly.
C. First Amendment Claim
Plaintiff claims that the attempts made by Weir,
Chapdelaine, Zawilinksi, Torres, and Beaudry to coerce him to
cooperate with their investigation by withholding his telephone
and visitation privileges violated his rights under the First
Amendment.

Defendants move to dismiss these claims on the ground

that an inmate’s communications may be restricted in this manner
without violating the First Amendment.

Although "[a] prison

inmate's rights to communicate with family and friends are
essentially First Amendment rights subject to § 1983 protection,"
Morgan v. LaVallee, 526 F.2d 221, 225 (2d Cir. 1975), because of
the security concerns inherent in correctional facilities, "the
First Amendment's protection of communication is not without
restriction."

Pitsley v. Ricks, No. 96-CV-0372NAMDRH, 2000 WL

13

362023 at *4 (N.D.N.Y. Mar. 31, 2000); see also Pell v.
Procunier, 417 U.S. 817, 822 (1974) (“[A] prison inmate retains
those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological
objectives of the corrections system"; however, “challenges to
prison restrictions that are asserted to inhibit First Amendment
interests must be analyzed in terms of the legitimate policies
and goals of the corrections system.”).

I agree that the

deprivation of plaintiff's privileges in the circumstances of
this case does not violate the First Amendment.
The restrictions on plaintiff’s phone privileges, which were
implemented after the guilty finding and upon his refusal to
cooperate with the ongoing investigation, do not support a
constitutional claim because there is no allegation that he was
unable to communicate with family members and friends by other
means.

See, e.g., Riddick v. Arnone, No. 3:11cv631, 2012 WL

2716355, at *3 (D. Conn. July 9, 2012) (dismissing claim that
prison officials denied plaintiff access to telephone on ground
that inmates do not have a “constitutional right to unrestricted
telephone use” and plaintiff did not allege that he was barred
from communicating through mail during period when he could not
use telephone); Henry v. Davis, No. 10-Civ.-7575(PAC)(JLC), 2011
WL 5006831, at *2 (S.D.N.Y. Oct. 20, 2011) (allegations
challenging restrictions on phone calls failed to state

14

cognizable federal claim because "[p]risoners have no
constitutional right to unrestricted telephone use" and plaintiff
did not allege that he was denied alternate methods of
communication).

The restriction on plaintiff's visitation

privileges does not run afoul of the First Amendment because
there is no allegation that the deprivation was malicious and the
exhibits show that it was rationally related to security
concerns.

Mills v. Fischer, 497 F. App'x 114, 116 (2d Cir. 2012)

cert. denied, 133 S. Ct. 1255 (U.S. 2013) (although "the
intentional or malicious deprivation of visitation to a prisoner,
even on one occasion, could rise to the level of a constitutional
violation," where plaintiff alleges only rudeness and not malice,
the complaint fails to state a plausible claim under the First
Amendment; regulations that bear a rational relation to
legitimate penological interests do not violate that right);
Johnson v. Goord, 198 F.3d 233 (2d Cir. 1999) (three-month
suspension of visits to enforce prohibition on unacceptable
physical contact between inmates and visitors not violation of
First Amendment in light of justifications and fact that
plaintiff remained free to communicate with his wife by mail and
receive other visitors); Patterson v. City of New York, 11 CIV.
7976 DLC, 2012 WL 3264354, at *8 (S.D.N.Y. Aug. 9, 2012)
("[L]imitations on visits that are reasonably related to a
legitimate penological interest do not violate a prisoner's

15

constitutional right."); Adeyola v. Gibon, 537 F. Supp. 2d 479,
481 (W.D.N.Y. 2008) ("[T]here is no absolute constitutional right
to visitation, and, at the very least, first amendment values
must give way to reasonable considerations of prison
management.") (internal citations omitted); Midalgo v. Bass,
9:03CV1128(NAM/RFT), 2006 WL 2795332, at *16 (N.D.N.Y. Sept. 26,
2006) ("[F]amily visitations for inmates only constitute a
privilege and not a right").

Indeed, the Court is required to

grant "wide-ranging deference" to prison administrators "in the
adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and
to maintain institutional security."

Bell v. Wolfish, 441 U.S.

520, 547 (1979).4
D. Qualified Immunity
Finally, defendants argue that they are entitled to
qualified immunity, which protects a government official from the
burdens of litigation unless the official’s conduct violated
“clearly established statutory or constitutional rights of which
a reasonable person would have known.”
U.S. 800, 818 (1982).

Harlow v. Fitzgerald, 457

A right is clearly established if (1) it

was defined with reasonable specificity at the time of the
4

To the extent plaintiff seeks to bring a First Amendment claim
of retaliation, his claim fails because he does not allege that
he engaged in constitutionally protected conduct and that the
conduct was a substantial or motivating factor for the adverse
actions at issue. See Bennett v. Goord, 343 F.3d 133, 137 (2d
Cir. 2003).
16

defendants' actions, (2) the Supreme Court or Second Circuit had
affirmed the rule, and (3) a reasonable defendant would have
understood from the existing law that his conduct was unlawful.
Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998).
I agree that defendants are entitled to qualified immunity.
Plaintiff was found guilty of conspiracy to convey contraband
into Osborn and pleaded guilty to security tampering based on
phone conversations with family members and he refused to
opportunities to cooperate.

Prison officials responded by taking

away his phone privileges and restricting his visitation
privileges, which case law has repeatedly condoned as permissible
when rationally related to security concerns.

Given the state of

the case law at the pertinent time, even if the deprivation of
plaintiff’s privileges violated his constitutional rights, a
reasonable defendant would not have understood that the
deprivation was unlawful.
III. Conclusion
Accordingly, the motion to dismiss is hereby granted.

The

Clerk may close the case.
So ordered this 26th day of September 2014.
_________/s/ RNC____________
Robert N. Chatigny
United States District Judge

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