Rivera v. Murphy et al

Filing 22

RULING granting 21 Motion to Dismiss. The Second Amended Complaint is dismissed, and the Clerk is directed to enter judgment and close this case. Signed by Judge Janet C. Hall on 6/27/2014. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NORBERTO RIVERA,
Plaintiff,
v.
PETER MURPHY, et. al.,
Defendants.

:
:
:
:
:
:
:

PRISONER CASE NO.
3:13-CV-653(JCH)

JUNE 27, 2014

RULING RE: DEFENDANTS’ MOTION TO DISMISS (Doc. No. 21)
On May 15, 2013, the court dismissed the Complaint and granted plaintiff
Norberto Rivera (‘Rivera”) leave to amend his complaint to state an equal protection
claim. When Rivera filed his First Amended Complaint, the Court concluded that limited
discovery was warranted to enable him to file a class of one equal protection claim,
ordered the defendants to produce records of the Extended Family Visitation Program
at MacDougall-Walker Correctional Institution, and afforded Rivera the opportunity to file
a Second Amended Complaint. The defendants now move to dismiss the Second
Amended Complaint for failure to state a cognizable equal protection claim. For the
reasons that follow, the defendants’ Motion is GRANTED.
I.

STANDARD OF REVIEW
When considering a motion to dismiss, the court accepts as true all factual

allegations in the complaint and draws inferences from these allegations in the light
most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir. 2003). The court
considers not whether the plaintiff ultimately will prevail, but whether he has stated a
claim upon which relief may be granted so that he should be entitled to offer evidence to

support his claim. See York v. Association of Bar of City of New York, 286 F.3d 122,
125 (2d Cir.), cert. denied, 537 U.S. 1089 (2002).
In reviewing the complaint in response to a motion to dismiss, the court applies
“a ‘plausibility standard,’ which is guided by two working principles.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). First, the requirement that the court accept as true the
allegations in the complaint “‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S.
at 678). Second, to survive a motion to dismiss, the complaint must state a plausible
claim for relief. Determining whether the complaint states a plausible claim for relief is
“‘a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.’” Id. (quoting Iqbal, 556 U.S. at 679). Even under this
standard, however, the court liberally construes a pro se complaint. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Boykin v. KeyCorp, 521 F.3d 202, 213-14,
216 (2d Cir. 2008).
II.

FACTS1
Rivera participated in the Extended Family Visitation Program from 1991 until he

received a disciplinary report in 2008. In August 2009, the rules regarding the Extended
Family Visitation Program were changed to require that a child under the age of

1

Rivera does not include a statement of facts in his second amended complaint.
Instead, he presents conclusory statements and legal argument. The facts are taken from the
court’s Initial Review Order (Doc. No. 5).

2

eighteen participate in each visit. In November 2009, Rivera sought readmission to the
program. He was told that he did not meet the new requirements because he did not
have a child under the age of eighteen.
III.

DISCUSSION
The defendants move to dismiss the Second Amended Complaint on the ground

that Rivera failed to allege facts supporting a cognizable equal protection claim.
Rivera’s response was due on June 12, 2014. Despite notice to Rivera of his obligation
to respond and the consequences of failing to do so, see Notice to Pro Se Litigant
Opposing Motion to Dismiss (Doc. No. 21-2), he has neither submitted a memorandum
in opposition to the motion nor sought additional time within which to do so.
In the Initial Review Order directed to the original complaint, the court dismissed
Rivera’s due process claim because, unlike some other states, Connecticut has not
created a protected liberty interest in visitation. In his Second Amended Complaint,
Rivera reasserts his due process claim and refers the court to cases finding a protected
liberty interest in visitation under New York law. Those cases are based on a consent
decree entered in a New York case and, therefore, apply only to inmates confined in
New York. See, e.g., Dawes v. State of New York, 194 Misc. 2d 617, 618 (2003)
(quoting Kozlowski v. Coughlin, 871 F.2d 241, 242 (2d Cir. 1989)). The cases provide
no support for the existence of a protected liberty interest under Connecticut law. Thus,
Rivera’s attempt to revive his due process claim fails.
As the court previously informed Rivera, to state a valid equal protection “class of
one” claim, he must allege (1) that he has been intentionally treated differently from
3

others similarly situated, and (2) that there is no rational basis for the difference in
treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Rivera must
allege an “extremely high” level of similarity with the person to whom he is comparing
himself. Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005) overruled on other
grounds Appel v. Spiridon, 531 F.3d 138, 139 (2d Cir. 2008). The plaintiff’s
circumstances must be “prima facie identical” to that of the other person. Id. at 105. In
this case, Rivera must identify an inmate returning to MacDougall Correctional
Institution who was re-admitted to the Extended Family Visitation Program without
having a child under eighteen years of age.
In his First Amended Complaint, Rivera alleged that he had a friend in the
institution who participated in the program but had never had a child and provided
documentation indicating that inmates participating in the program prior to the policy
change were allowed to continue even though they did not have a child. Indeed, he
was one of those inmates for several years. Rivera did not, however, identify any
inmate who was removed from the program and then re-admitted after the policy
change without having a child under eighteen years of age. In light of Rivera’s failure to
identify his friend by name and provide specific facts regarding his friend’s admission to
the program, the court ordered the defendants to provide Rivera with records of all
inmates at MacDougall Correctional Institution participating in the Extended Family
Visitation Program. After receiving the records, Rivera filed a Second Amended
Complaint.

4

Rivera attached the record provided by the defendants to his Second Amended
Complaint. The document shows that every inmate admitted to the Extended Family
Visitation Program after 2009 had a child under the age of eighteen. Thus, Rivera has
failed to identify a similarly situated inmate to support his equal protection claim.
Rivera argues in his First Amended Complaint that the Extended Family
Visitation Program is available in other correctional facilities, and there may be an
inmate in some other facility who was admitted to the program without having a child
under the age of eighteen. Such speculation is insufficient to permit this case to
proceed. See Ciresi v. Citicorp, 782 F. Supp. 819, 822 (S.D.N.Y. 1991) (dismissing
complaint containing only conclusory statements and noting “it would not be appropriate
to allow the complaint to stand so that the plaintiff might conduct a fishing expedition to
see if there is a smoking gun”). The court allowed limited discovery, based on Rivera’s
representation that he had a friend at MacDougall-Walker Correctional Institution who
was allowed admission to the program without having a child. This allegation proved
unfounded.
IV.

CONCLUSION
As Rivera fails to allege facts to support an equal protection claim, the

defendants’ Motion to Dismiss (Doc. No. 21) is GRANTED. The Second Amended
Complaint is dismissed, and the Clerk is directed to enter judgment and close this case.

5

SO ORDERED.
Dated this 27th day of June 2014, at New Haven, Connecticut.

_
/s/ Janet C. Hall
Janet C. Hall
United States District Judge

6