Davis v. Erfe et al

Filing 28

ORDER granting 18 Motion for Summary Judgment; denying 26 Motion for Restraining Order. The Clerk is directed to enter judgment and close this case. Signed by Judge Stefan R. Underhill on 9/19/2016. (Buttrick, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SAMUEL DAVIS,
Plaintiff,
v.
SCOTT ERFE, et al.,
Defendants.

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Case No. 3:15-cv-461 (SRU)

RULING ON DEFENDANTS‟ MOTION FOR SUMMARY JUDGMENT
Samuel Davis commenced this action by complaint filed on March 30, 2015. The remaining
defendants are Warden Scott Erfe, Deputy Warden Viger, Counselor Supervisor Jennifer Peterson,
Captain Johnson, and Correctional Counselor Schepp. Davis alleges that the defendants retaliated
against him for filing grievances and exercising his right of access to the courts. The defendants have
filed a motion for summary judgment. Doc. #18. For the reasons that follow, the defendants‟ motion is
granted.
I.

Standard of Review
Summary judgment is appropriate when the record demonstrates that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present
affirmative evidence in order to defeat a properly supported motion for summary judgment).
When ruling on a summary judgment motion, the court must construe the facts of record in the
light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable
inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970);

see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d Cir. 1992) (court is required to
“resolve all ambiguities and draw all inferences in favor of the nonmoving party”). When a motion for
summary judgment is properly supported by documentary and testimonial evidence, however, the
nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present
sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
“Only when reasonable minds could not differ as to the import of the evidence is summary
judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v.
Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is
“merely colorable,” or is not “significantly probative,” summary judgment may be granted. Anderson,
477 U.S. at 249–50.
The mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact. As to materiality,
the substantive law will identify which facts are material. Only disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247–48. To present a “genuine” issue of material fact, there must be contradictory evidence “such
that a reasonable jury could return a verdict for the non-moving party.” Id. at 248.
If the nonmoving party has failed to make a sufficient showing on an essential element of his case with
respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477
U.S. at 322. In such a situation, “there can be „no genuine issue as to any material fact,‟ since a complete
failure of proof concerning an essential element of the nonmoving party‟s case necessarily renders all
other facts immaterial.” Id. at 322–23; accord Goenaga v. March of Dimes Birth Defects Found., 51
F.3d 14, 18 (2d Cir. 1995) (movant‟s burden satisfied if he can point to an absence of evidence to
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support an essential element of nonmoving party‟s claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex, 477 U.S. at 323.
II.

Facts1
Davis first entered the custody of the Department of Correction in 1977. Since then, he has been

discharged, readmitted to custody, and transferred among correctional facilities numerous times. During
some of the readmissions and transfers, Davis would attend an inmate orientation, at which he would
receive information on multiple topics including the Inmate Grievance Procedures set forth in
Administrative Directive 9.6.
On February 19, 2014, Davis was transferred to Cheshire Correctional Institution. He attended
inmate orientation on February 21, 2014, and received an inmate handbook. Davis has filed inmate
grievances in the past, demonstrating his understanding of the grievance procedures.
On January 17, 2015, he filed an inmate grievance regarding cancellation of recreation. At that
time, he was housed in North Block 6, where defendant Peterson was the unit manager. In February
2015, defendant Schepp became Davis‟ counselor. Both Peterson and Schepp are white-skinned
females. Davis is a black-skinned male. About this same time, Davis applied for a prison job. Defendant
Schepp told Davis that he could not apply for a job until he was disciplinary report free for one year. On
February 6, 2015, Davis submitted an Inmate Request Form to defendant Peterson complaining that
defendant Schepp had lied to him. He stated that he knew he could apply for a prison job as soon as he

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The facts are taken from the defendants‟ Local Rule 56(a) Statements and supporting exhibits. Local Rule 56(a)2
requires the party opposing summary judgment to submit a Local Rule 56(a)2 Statement that contains separately numbered
paragraphs corresponding to the Local Rule 56(a)1 Statement and indicates whether the opposing party admits or denies the
facts set forth by the moving party. Each admission or denial must include a citation to an affidavit or other admissible
evidence. In addition, the opposing party must submit a list of disputed factual issues. D. Conn. L. Civ. R. 56(a)2 and 56(a)3.
Although the defendants informed Davis of this requirement, Doc. #18-16, he has not submitted a Local Rule 56(a)2
Statement. Accordingly, the defendants‟ facts are deemed admitted. See D. Conn. L. Civ. R. 56(a)1 (“All material facts set
forth in said statement will be deemed admitted unless controverted by the statement required to be served by the opposing
party in accordance with Rule 56(a)2.”).

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finished serving disciplinary sanctions. Davis also accused defendant Schepp of racism. The one-year
waiting period to apply for a prison job is a policy of the Cheshire Correctional Institution. Davis had
received a disciplinary report on November 12, 2014. Thus, under the facility policy, the earliest he
would be eligible to be placed on the list for a prison job was November 13, 2015. About that same time,
Davis asked defendant Schepp for a new mattress. Defendant Schepp did not give Davis a new mattress.
On February 6, 2015, Davis spoke to defendant Peterson in the hallway. He complained that
defendant Schepp spoke to him “like it was 1930 when white women talk to black men like he a little
boy.” Doc. #18-15 at 3, ¶ 23. Davis based his characterization of defendant Schepp as a racist on the
denial of the new mattress and other things. Defendant Peterson had spoken with defendant Schepp
before her conversation with Davis and was aware of the situation.
While returning from the dining hall, Davis approached defendant Captain Johnson, an AfricanAmerican supervisor. Davis addressed his issues to defendant Johnson because defendant Peterson did
not want to listen to his complaints. At the time, Defendant Peterson was standing behind defendant
Johnson, and told him to leave.
That same day, Davis submitted an Inmate Request Form to defendant Johnson complaining that
defendant Johnson had permitted defendant Peterson to call him “boy” and to order him to stop speaking
to Davis and leave the area. Doc. #18-15 at 4, ¶ 28. Later in the day, Davis submitted a second Inmate
Request Form to defendant Johnson accusing him of being in love with a sixty-two-year-old woman. In
his deposition, Davis identified the woman as defendant Peterson. Davis stated in the request form that
he had informed defendant Deputy Warden Viger about an inappropriate relationship between
defendants Peterson and Johnson.
On February 24, 2015, at approximately 12:30 p.m., defendant Schepp attempted to deliver legal
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mail to Davis. Correctional Officer Barnes asked Davis to bring a pen from his cell to sign for the mail.
Davis became disrespectful and demanded that defendant Schepp provide him with a pen. In response,
defendant Schepp ordered Davis to enter his cell and lock up. Defendant Schepp left the housing unit for
ten minutes and then returned to deliver Davis‟ legal mail to him. Davis signed for the mail and
defendant Schepp opened the mail in his presence. The incident was recorded on the surveillance video.
The following day, Davis submitted an Inmate Request Form complaining that defendant Schepp
opened his legal mail outside his presence. Defendant Peterson reviewed the surveillance tape and
determined that Davis‟ claim was false.
On February 27, 2015, Davis spoke with Commissioner Semple and Warden Erfe in the hallway
while they were touring the housing unit. He told them that he had problems with defendants Johnson,
Peterson and Schepp. Davis complained that his legal mail had been opened, he was passed over for
library visits, he had problems with recreation and he never got a new mattress. Davis characterized
those actions as retaliatory. He testified at his deposition that he did not file a grievance regarding those
claims and that nothing had prevented him from doing so.
Davis continued to tell correctional officers and supervisors that defendants Peterson and
Johnson were in a relationship and that defendant Peterson was a racist. He was attempting to turn staff
against defendant Peterson.
On February 13, 2015, defendant Peterson had issued a bad work report to inmate King after she
learned that inmate King was hoarding supplies in his cell. As a result of the bad report, inmate King
lost his prison job. Davis knew inmate King and was aware that inmate King had lost his job. On
February 28, 2015, defendant Peterson received a confidential letter from an inmate stating that, on
February 14, 2015, Davis had collaborated with inmate King and other inmates to fabricate a claim that
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they had witnessed defendant Peterson kissing and fondling Officer Torres on several occasions. The
letter stated that the inmates were trying to get defendant Peterson and Officer Torres transferred out of
the housing unit as payback for inmate King losing his job, and to get inmate King‟s job restored. When
the letter was handed to defendant Peterson, Davis reportedly was continuing to search for inmates to
help inmate King with his “scam.” Based on the letter and Davis‟ prior actions in attempting to disrupt
defendant Peterson‟s relationship with staff, defendants Peterson and Johnson determined that the
plaintiff presented a safety and security concern in the housing unit.
Defendant Peterson reported those events to her supervisors. On March 2, 2015, defendant
Deputy Warden Viger ordered that Davis and inmate King be sent to restrictive housing on
Administrative Detention status pending an investigation. Upon arrival in restrictive housing, Davis was
given a copy of the restrictive housing order. On March 11, 2015, defendant Warden Erfe ordered Davis
transferred to Corrigan-Radgowski Correctional Center.
On March 23, 2015, Davis wrote a letter to Deputy Commissioner Rinaldi stating that he was
sent to Corrigan-Radgowski Correctional Center because he complained about defendant Peterson for
calling him “boy” on February 6, 2015, about Officer Torres for telling other inmates that inmate King
was a “rat,” told defendant Viger about other staff, and complained about defendant Schepp for opening
his legal mail on February 24, 2015. At his deposition, however, Davis denied the assertions he made to
Deputy Commissioner Rinaldi. Instead, Davis claimed that he was transferred because he complained
about defendant Peterson not doing her job, making excuses for counselors, and not ensuring he
received recreation and library time. He also stated that he complained to defendant Viger about the
“love affair” between defendants Peterson and Johnson and also told defendant Viger that “they” had
put up a little memo calling inmate King a rat. Davis also attributed his transfer to his complaints that
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defendant Schepp opened his mail, that defendant Torres came to work at 7:00 a.m. and immediately
turned the television volume up, and that officers were waking inmates up when they came into the
block to use the officers‟ microwave. Davis stated that he filed a grievance claiming that he was
transferred in retaliation for filing grievances, but did not receive a response. He did not appeal the nonresponse. Department of Correction records do not show that Davis filed such a grievance regarding his
transfer while he was at Cheshire Correctional Institution or when he arrived at Corrigan-Radgowski
Correctional Center.
Davis testified that he did not file a grievance regarding Administrative Detention placement at
Cheshire Correctional Institution because he could not get a grievance form while on Administrative
Detention status. Davis was transferred to Corrigan-Radgowski Correctional Center nine days after his
placement. He concedes that after he arrived at Corrigan-Radgowski Correctional Center, he did not file
a grievance regarding the Administrative Detention placement and that nothing prevented him from
doing so. About a week after commencing this lawsuit, Davis filed a grievance seeking the reason for
his placement on Administrative Detention status.
In his complaint, Davis attributes the placement to retaliation for filing written complaints and
grievances, specifically the February 6, 2015 letter to defendant Viger about the alleged inappropriate
relationship between defendants Peterson and Johnson.
III.

Discussion
In his complaint, Davis asserts a claim for supervisory liability against Warden Erfe and Deputy

Warden Viger; a First Amendment retaliation claim against defendants Warden Erfe, Deputy Warden
Viger, Unit Manager Peterson, and Captain Johnson for placing him in segregation and transferring him
to another correctional facility with less programming and fewer job opportunities; and a First
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Amendment retaliation claim and a Fourth Amendment unreasonable search claim against defendant
Schepp for opening his legal mail outside his presence. The defendants move for summary judgment on
three grounds: (1) Davis‟ claims against the defendants in their official capacities and all claims for
equitable relief are barred by the Eleventh Amendment; (2) Davis failed to exhaust his administrative
remedies before commencing this action; and (3) Davis fails to present any evidence of a constitutional
violation.
A.

Claims in Official Capacity and for Equitable Relief

Davis names all defendants in their individual and official capacities. He does not specify the
capacity in which he requests compensatory and punitive damages. The Eleventh Amendment divests
the district court of subject matter jurisdiction over any claims for monetary damages against a state
official acting in his official capacity unless the state has waived that immunity or Congress has
abrogated it. See Kentucky v. Graham, 473 U.S. 159, 169 (1985). Section 1983 does not abrogate state
sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 341–45 (1979). Nor has Davis presented
evidence showing that Connecticut has waived its immunity. Thus, all claims for damages against the
defendants in their official capacities are barred by the Eleventh Amendment. The defendants‟ motion
for summary judgment is granted with respect to all claims for damages in the defendants‟ official
capacity.
Davis also seeks declaratory relief in the form of a declaration that the defendants‟ past actions
violated his constitutional rights. Declaratory relief serves to “settle legal rights and remove uncertainty
and insecurity from legal relationships without awaiting a violation of that right or a disturbance of the
relationship.” Colabella v. American Institute of Certified Public Accountants, 2011 WL 4532132, at
*22 (E.D.N.Y. Sept. 28, 2011) (citations omitted). Declaratory relief operates prospectively to enable
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parties to adjudicate claims before either side suffers great damages. See In re Combustible Equip.
Assoc., 838 F.2d 35, 37 (2d Cir. 1988). The complaint concerns only past actions. Davis has not
identified any legal relationships or issues that require resolution via declaratory relief. The defendants‟
motion for summary judgment is thus granted with respect to the request for declaratory relief. See
Ward v. Thomas, 207 F.3d 114, 119–20 (2d Cir. 2000) (holding that Eleventh Amendment bars
declaration that State of Connecticut violated federal law in the past); Camofi Master LDC v. College
P’ship, Inc., 452 F. Supp. 2d 462, 480 (S.D.N.Y. 2006) (concluding that claim for declaratory relief that
is duplicative of adjudicative claim underlying action serves no purpose).
Finally, in the introduction to the complaint, Davis references unspecified injunctive relief, but
he fails to seek an injunction in the prayer for relief. The Supreme Court has long held that the Eleventh
Amendment does not bar claims for prospective injunctive relief against state officials in their official
capacities. See Verizon Maryland Inc. v. Public Serv. Com’n of Maryland, 535 U.S. 635, 645 (2004)
(citing Ex parte Young, 209 U.S. 123 (1908)). That exception to Eleventh Amendment immunity does
not extend to requests for injunctive relief relating to past constitutional violations. See Morgan v.
Dzurenda, No. 3:14cv966(VAB), 2015 WL 5733723, at *9 (D. Conn. Sept. 29, 2015). Because Davis
has not identified any specific injunctive relief and, therefore, has not demonstrated that an injunction is
required to remedy a future constitutional violation against him by the defendants, any possible request
for injunctive relief is barred by the Eleventh Amendment. The defendants‟ motion for summary
judgment is granted with respect to any request for injunctive relief.
B.

Exhaustion of Administrative Remedies

The defendants next argue that Davis failed to exhaust his administrative remedies before
commencing this action.
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The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), imposes a requirement that inmates
exhaust their administrative remedies before filing an action in federal court concerning any aspect of
prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Section 1997e requires exhaustion of any
available administrative remedies, regardless of whether they provide the relief the inmate seeks. See
Booth v. Churner, 532 U.S. 731, 741 (2001). A claim is not exhausted until the inmate complies with all
administrative deadlines and procedures. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). Informal efforts
to put prison officials on notice of inmate concerns do not satisfy the exhaustion requirement. See
Marcias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007). If the deadline to file a grievance has passed, an
unexhausted claim is barred from federal court. See Woodford, 548 U.S. at 95. In addition, the inmate
must exhaust his administrative remedies for each claim he asserts in federal court. See Baldwin v.
Arnone, 2013 WL 628660, at *5 (D. Conn. Feb. 18, 2013).
An inmate may be excused from the exhaustion requirement “only where (1) administrative
remedies were not in fact available; (2) prison officials have forfeited, or are estopped from raising, the
affirmative defense of non-exhaustion; or (3) „special circumstances . . . justify the prisoner‟s failure to
comply with the administrative procedural requirements.‟” Adekoya v. Federal Bureau of Prisons, 375
F. App‟x 119, 121 (2d Cir. 2010) (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).
The courts have found special circumstances only where the failure to exhaust administrative remedies
was caused by a reasonable but erroneous interpretation of prison regulations. Bennett v. James, 737 F.
Supp. 2d 219, 227 (S.D.N.Y. 2010), aff’d, 441 F. App‟x 816 (2d Cir. 2011).
The Department of Correction grievance procedures are set forth in Administrative Directive 9.6.
See Defs.‟ Mem. Ex. K, Doc. #18-13. The procedures require an inmate first to seek informal resolution
of the issue in writing using an Inmate Request Form. The appropriate correctional official then has
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fifteen days to respond to the Inmate Request. If the inmate is not satisfied with the response, the inmate
may file a grievance, to which he must attach the Inmate Request Form containing the response. The
inmate must file the grievance within thirty days of the date of the cause of the grievance. The Unit
Administrator has thirty days to respond to the grievance. If the inmate is not satisfied with the response,
or no response is provided within the thirty days, the inmate may file a grievance appeal.
Davis was aware of the grievance procedures. Prior to filing this lawsuit, he attended inmate
orientation at Cheshire Correctional Institution. Defs.‟ Mem. Ex. A, Tr. of Davis Deposition, Doc. #18-2
at 18–19. Davis acknowledged that he understood the administrative remedy, or grievance, procedures.
Id. at 19. Davis also received an Inmate Handbook that explained the inmate grievance procedures, and
stated at his deposition that he had previously utilized the inmate grievance procedures. Id.
1.

Exhaustion of the Unreasonable Search Claim

Davis‟ Fourth Amendment claim against defendant Schepp is based on his allegation that, on
February 24, 2015, she opened his legal mail outside his presence. He characterizes her action as an
unreasonable search. The following day, Davis submitted an Inmate Request Form to defendant
Peterson stating that defendant Schepp had opened his legal mail outside his presence. Doc. #18-2 at 103
(Davis Dep. Tr. Ex. 8). He asked her to report the incident. Davis stated in his deposition that defendant
Peterson told him that she had submitted a report and that he was satisfied with that result. Id. at 46–49.
He did not file a grievance over this incident. Id. at 46.
If Davis was not satisfied with the response to his Inmate Request, he was required to pursue the
matter by filing a grievance. Because he concedes that he did not do so, the claim is unexhausted.
2.

Retaliation Claims

In his complaint, Davis identifies three retaliatory actions: (1) his placement in restrictive
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housing; (2) his transfer; and (3) the improper reading of his legal mail. The defendants contend that
Davis has not exhausted his administrative remedies with regard to any of those claims. Davis states that
he was unable to obtain administrative remedy forms while in restrictive housing.
During his deposition, Davis conceded that he did not file a grievance regarding his placement in
restrictive housing after he arrived at Corrigan-Radgowski Correctional Center. Davis was required to
file a grievance within thirty days of his restrictive housing placement. He was transferred to CorriganRadgowski Correctional Center nine days after his placement. Thus, even crediting the lack of access to
administrative remedy forms for the nine days Davis was confined in restrictive housing, he still had
ample time to file his grievance. In order to file a grievance, Davis was first required to submit an
Inmate Request Form to which staff would then have fifteen days to respond. Accordingly, allowing for
the response period to run within the thirty-day grievance period, Davis had six days to file an Inmate
Request Form after his transfer. Davis conceded that nothing prevented him from filing a grievance
regarding his restrictive housing placement, and that he did not do so. Doc. #18-2 at 66–67. Thus, Davis
has not exhausted his administrative remedies on the restrictive housing claim.
Davis testified that he filed a grievance claiming that he was transferred in retaliation for filing
grievances, but did not receive a response. Id. at 63. The defendants have submitted copies of the
grievance log from Corrigan-Radgowski Correctional Center. The log discloses no such grievance. See
Defs.‟ Mem. Ex.J, Doc. #18-12, Aff. of Michelle King, ¶¶ 4–5 and attached log. Even crediting Davis‟
statement, he has not satisfied the exhaustion requirement. To have exhausted his administrative
remedies, Davis was required to do more than file an initial grievance. He was required to appeal the
non-response to the next level. See Woodford, 548 U.S. at 90 (exhaustion requires inmate to comply
with all administrative deadlines and procedures). Davis stated, however, that he did not appeal the non12

response. Doc. #18-2 at 63.
In April 2015, about a week after he filed this action, Davis filed a grievance and subsequent
appeal seeking the reason for his transfer. Because the grievance was filed after the complaint, it does
not satisfy the exhaustion requirement. Davis was required to fully exhaust his administrative remedies
before he filed the complaint. See Lopez v. Cipolini, ___ F.3d ___, 2015 WL 5732076, at *6 (S.D.N.Y.
Sept. 30, 2015) (requiring dismissal of suit when prisoner did not properly exhaust administrative
remedies before filing suit) (collecting cases). Because Davis did not file his grievance until after he
filed this case, he has not exhausted his administrative remedies with regard to his claim of retaliatory
transfer.
Finally, Davis alleged that defendant Schepp opened his legal mail outside his presence in
retaliation for his complaints. Davis testified at his deposition that he did not file a grievance regarding
the following retaliatory actions: opening his legal mail, being passed over for library visits, problems
with recreation, and denial of a new mattress. He also testified that nothing prevented him from filing
grievances regarding those actions. Doc. #18-2 at 50–53. Thus, by his own admission, Davis has not
exhausted his administrative remedies with regard to any claim of retaliation.
Davis did not exhaust his administrative remedies on any of his retaliation claims and conceded
during his deposition that nothing prevented him from doing so. The defendants‟ motion for summary
judgment is granted with respect to all retaliation claims for failure to exhaust administrative remedies
before commencing a section 1983 action.
C.

Unreasonable Search Claim
The defendants contend that, even if Davis exhausted his claim that defendant Schepp

unreasonably searched his legal mail by opening and reading it outside his presence, the claim lacks
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merit.
Although a prisoner has a right to be present when his legal mail is opened, Wolff v. McDonnell,
418 U.S. 539, 574–76 (1974), an isolated incident of mail tampering is usually insufficient to establish a
constitutional violation. See Washington v. James, 782 F.3d 1134, 1139 (2d Cir. 1986). To state an
actionable claim, the inmate must show that correctional officials “regularly and unjustifiably interfered
with incoming legal mail.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citations omitted); see
also Guillory v. Haywood, 2015 WL 268933, at *23 (N.D.N.Y. Jan. 21, 2015) (affirming and adopting
recommended ruling dismissing First Amendment claim for isolated incident of improper opening of
legal mail).
The defendants also contend that the claim lacks a factual basis. In support of their motion for
summary judgment, the defendants have filed a copy of the video surveillance tape of the housing unit
on February 24, 2015. See Defs.‟ Mem. Ex. F-1. The video recording shows defendant Schepp with
Davis‟ legal mail in the housing unit. She leaves at 12:37 p.m. before giving him his mail. She then
returns, opens Davis‟ legal mail in his presence, and hands him the letter at 12:52 p.m. In opposition to
the motion for summary judgment, Davis has submitted his own affidavit recounting a different version
of the events. He provides no objective evidence contesting the accuracy or authenticity of the video
recording, however, and has not alleged that he received more than one legal letter that day. See Mason
v. Rich, 2011 WL 4345025, at *3 (D. Conn. Sept. 15, 2011) (conclusory restatement of allegations from
complaint in affidavit is insufficient to oppose motion for summary judgment); Zembko v. Northwestern
Mut. Life Ins. Co., 2007 WL 948323, at *4 n.1 (D. Conn. Mar. 26, 2007) (“a nonmovant‟s „self-serving
conclusory statements‟ that dispute the movant‟s evidence cannot create material issues of fact to avoid
summary judgment”). In light of the clear evidence on the video recording, I conclude there is no
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genuine issue of material fact regarding distribution of Davis‟ legal mail on February 24, 2015, and that
the defendants are entitled to summary judgment on the merits for the claim regarding opening legal
mail.
IV.

Conclusion
The defendants‟ motion for summary judgment [Doc. #18] is GRANTED. The Clerk is directed

to enter judgment and close this case. Davis‟ motion for a restraining order [Doc. #26] is DENIED
without prejudice to refilling in a separate case because it is based on allegations unrelated to the claims
asserted in the complaint. See Allen v. Brown, 1998 WL 214418, at *4 (N.D.N.Y. Apr. 28, 1998).

SO ORDERED.
Signed this 19th day of September 2016 at Bridgeport, Connecticut.

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

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