Ramos v. Poore et al

Filing 28

ORDER dismissing 23 Amended Complaint. Signed by Judge Victor A. Bolden on 4/11/2017. (Williams, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSE ERIC RAMOS,
Plaintiff,
v.
COREY POORE, ET AL.,
Defendants.

:
:
:
:
:
:
:

Case No. 3:15-cv-518 (VAB)

ORDER DISMISSING AMENDED COMPLAINT
Plaintiff, Jose Eric Ramos, is currently confined at MacDougall-Walker Correctional
Institution in Suffield, Connecticut (“MacDougall-Walker”). Mr. Ramos initially filed this
action in the Connecticut Superior Court for the Judicial District of New London, asserting
claims of excessive force, lack of speedy arraignment, and violations of the right to counsel and
the right to remain silent against Defendants, Sergeant Corey Poore, Detectives James Curtis and
H. Reams, Supervisor John Doe, and the Norwich Police Department.
On April 9, 2015, Defendants removed the action from state court to this Court under 28
U.S.C. § 1446. See Notice of Removal, ECF No. 1. On April 20, 2016, Defendants moved for
summary judgment. The Court has addressed the motion for summary judgment in a separate
ruling.
On November 29, 2016, Mr. Ramos filed an Amended Complaint without seeking leave
of the Court. For the reasons set forth below, the Amended Complaint will be dismissed.
The Amended Complaint filed by Mr. Ramos includes only Corey Poore in the title on
the first page; however, it lists Judge McMahon and the “Chief State’s Attorney” as new
Defendants on pages two and three. It also includes a new claim directed to sufficiency of the
affidavit that Detective Poore submitted in support of his request that a warrant be issued for Mr.
Ramos’s arrest in September 2012. The Amended Complaint does not include any facts in

support of the claims that are asserted in the original Complaint.
Federal Rule of Civil Procedure 15(a)(1) provides that a plaintiff may amend his
complaint once as of right “within: (A) 21 days after serving [the complaint], or (B) if the
pleading is one to which a responsive pleading is required, [within] 21 days after service of a
responsive pleading or 21 days after service of a motion” to dismiss, a motion for a more definite
statement or a motion to strike, “whichever is earlier.” The Federal Rules of Civil Procedure for
the United States District Courts apply to an action after it has been removed to federal court
from state court. See Rule 81(c)(1), Fed. R. Civ. P.
A defendant who has removed a complaint to federal court must file an answer to the
complaint within the time period set forth in Fed. R. Civ. P. 81(c)(2)(A)-(C). Thus, a complaint
that has been removed to this Court is a pleading “to which a responsive pleading is required,”
suggesting that an amended complaint may be filed as of right within 21 days after service of a
responsive pleading or a Rule 12 motion. See Rule 15(a)(1)(B), Fed. R. Civ. P. Here, however,
Defendants did not file an answer to the original Complaint, nor did they file a motion to
dismiss, a motion for a more definite statement or a motion to strike addressed to the Complaint.
Instead, they filed a motion for summary judgment, which is not a “pleading” under Rule
15(a)(1)(B). See Rule 7(a), Fed. R. Civ. P. (defining pleadings as: “a complaint … an answer to
a complaint … [and] if the court orders one, a reply to an answer”).
The Defendants object to the Amended Complaint as failing to comply with Fed. R. Civ.
P. Rule 15(a)(2). This rule requires that, in the event that a party is not permitted to file an
amended pleading as of right, he or she must seek leave to file it or secure the consent of the
opposing party to file it. See id. Given that Defendants did not file either a responsive pleading
2

or a Rule 12 motion addressed to the Complaint, it is unclear whether Mr. Ramos was required to
seek leave or the consent of opposing counsel before filing an Amended Complaint in this
matter. See Rule 15(a)(1)(B), Fed. R. Civ. P. (“a party may amend a pleading once as a matter of
course . . . (B) if the pleading is one to which a responsive pleading is required, [within] 21 days
after service of a responsive pleading or 21 days after service of a motion” to dismiss, a motion
for a more definite statement or a motion to strike, ‘whichever is earlier’”).
As of December 1, 2009, Federal Rule of Civil Procedure 15(a) was amended as set forth
above regarding the time permitted to amend a pleading once as a matter of right. Before the
2009 revision to Rule 15(a), the amendment of a pleading before trial was permitted “ʻ(1) …
once as a matter of course: (A) before being served with a responsive pleading; or (B) within 20
days after serving the pleading if a responsive pleading is not allowed and the action is not yet on
the trial calendar.’” Yale Univ. v Konowaloff, Civil No. 3:09-CV-466 (AWT), 2010 WL
3925262, at *1 (D. Conn. Sept. 29, 2010) (quoting Rule 15(a)(1)(A) & (B), Fed. R. Civ. P.
(effective December 1, 2007)). Otherwise, a party was only permitted to amend a pleading “with
the opposing party’s consent or [with] the court’s leave.” Fed. R. Civ. P. 15(a)(2) (effective
December 1, 2007).
The 2009 revisions to Rule 15(a)(1)(A) & (B) leave some ambiguity regarding the
timelines for filing an amended complaint when no responsive pleading or Rule 12 motion has
been filed. Under the revised language of the rule, section (B) of Rule 15(a)(1) is clearly
applicable to those pleadings to which a responsive pleading is required; however, it is unclear
whether subsection (A), which permits amendment of a pleading as of right within “21 days after

3

serving [the pleading],” is only applicable to pleadings to which a response is not required.1 See
Rule 15(a)(1)(B), Fed. R. Civ. P.
The case law interpreting these two sections of Rule 15(a)(1) is unsettled as to whether a
plaintiff may amend a complaint as of right more than twenty-one days after service of the
complaint under Rule 15(a)(1)(B) when the defendants fail to file a responsive pleading or Rule
12 motion. While the Second Circuit has not yet addressed this issue, there is some case law in
this District suggesting that, based on the language of Rule 15(a)(1)(A), a plaintiff’s ability to
amend a complaint as of right expires after 21 days have passed following service of the original
complaint, if the defendants have not filed an answer or Rule 12(b), (e) or (f) motion in response
to the complaint. See Trustees of I.B.E.W. Local Union No. 488 Pension Fund v. Norland Elec.,
Inc., No. 3:11-CV-709 (CSH), 2013 WL 785333, at *2 (D. Conn. Mar. 1, 2013) (finding that pro
se plaintiff’s ability to amend complaint as of right expired where “21 days have elapsed since
the service of Plaintiffs' Complaint on May 12, 2011, and Defendant has served no responsive
pleading or motion under Rule 15(a)(1)(B)”) (citing Castro v. United Sec. Inc., No. 10 Civ. 6152
(LBS), 2011 WL 1532012, *1 (S.D.N.Y. April 18, 2011); 6 Charles Alan Wright, Arthur R.
Miller, & Mary Kay Kane, Federal Practice and Procedure, § 1481 at 661–62 (3d ed. 2010)).
Other circuits, however, view this issue differently. See, e.g., Swanigan v. City of
Chicago, 775 F.3d 953, 963 (7th Cir. 2015) (“Because no responsive pleading or motion to
dismiss has been filed, the 21-day clock under Rule 15(a)(1)(B) never started and [plaintiff]
1

Those types of pleadings to which a responsive pleading is not required include an answer to a complaint and a
habeas petition. See Argraves v. United States, No. 3:11-CV-1421, 2013 WL 1856527 at *2 (D. Conn. May 2,
2013) (applying Rule 15(a)(1)(A) to request for leave to amend habeas petition and finding “Rule 15(a)(1)(B) is
inapplicable to habeas petitions because responsive pleadings are not required.”); Chevron Corp. v. Salazar, No. 11
CIV. 0691 LAK, 2011 WL 3628843, at *2 (S.D.N.Y. Aug. 17, 2011) (concluding amended answer to amended
complaint was filed more than 21 days after the service of the original answer to amended complaint “and therefore
was not authorized by Rule 15(a)(1)(A). Nor was that purported answer a ‘pleading ... to which a responsive
pleading [wa]s required.’ It therefore was not authorized by Rule 15(a)(1)(B)”).

4

retained the right to amend his complaint”); cf. Ramirez v. County of San Bernardino, 806 F.3d
1002, 1008 (9th Cir. 2015) (“Since 2009, a plaintiff has the right to amend within twenty-one
days of service of the complaint (15(a)(1)(A)), or within twenty-one days of service of a
responsive pleading or service of a motion under Rule 12(b), (e), or (f), whichever comes first
(15(a)(1)(B))”). In addition, research has revealed no cases addressing the particular facts of this
case: i.e., no answer was filed to a complaint that was removed from state court and an amended
complaint was filed without leave after the filing of a motion for summary judgment addressed
to the original complaint.
The Court concludes, however, that it need not determine, at this time, whether Mr.
Ramos properly filed the Amended Complaint as of right or whether he should have sought leave
to file the Amended Complaint. Under either scenario, the Amended Complaint is subject to
dismissal for failure to state a claim upon which relief may be granted.
As indicated above, the Amended Complaint asserts a completely new claim addressed to
the sufficiency of the affidavit in support of the warrant for Mr. Ramos’s arrest and also names
new Defendants. The Amended Complaint includes no allegations related to the claims asserted
in the original Complaint. In the Amended Complaint, Mr. Ramos alleges that on September 18,
2012, Detective Sergeant Poore submitted an affidavit in support of a warrant for his arrest. Mr.
Ramos claims that this affidavit included false or inaccurate statements regarding the location of
the gun that was allegedly used by Mr. Ramos to shoot the victim. Mr. Ramos states that, since
the issuance of the arrest warrant, some witnesses who provided statements which were included
in the arrest warrant affidavit have admitted to lying about the veracity of their statements.

5

Mr. Ramos claims that there was no probable cause to support his arrest. He suggests
that Sergeant Detective Poore submitted the affidavit in support of the arrest warrant knowing
that information contained in the affidavit might not have been true, and he alleges that Judge
McMahon approved the arrest warrant application. He contends that the conduct of Defendants
constituted cruel and unusual punishment in violation of the Eighth Amendment, violated his
Fourteenth Amendment due process and equal protection rights, and also violated his rights
under the Fourth, Fifth, Ninth and Tenth Amendments.
The Court considers the allegations in the Amended Complaint under 28 U.S.C. §
1915(e)(2)(b) and Rule 8 of the Federal Rules of Civil Procedure. Under 28 U.S.C. §
1915(e)(2)(b), a Court may dismiss a case at any time if it determines that the Complaint or
Amended Complaint “is frivolous or malicious . . . fails to state a claim upon which relief may
be granted; or seeks monetary relief from a defendant who is immune from such relief.” Id.
Dismissal of a Complaint or Amended Complaint is permitted whether the inmate has paid the
filing fee or he is proceeding in forma pauperis. See Carr v. Dvorin, 171 F.3d 115 (2d Cir.
1999) (per curiam).
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Although detailed allegations are not required, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). A complaint that
6

includes only “‘labels and conclusions,’ ‘a formulaic recitation of the elements of a cause of
action’ or ‘naked assertion[s]’ devoid of ‘further factual enhancement,’” does not meet the facial
plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).
Although courts still have an obligation to interpret “a pro se complaint liberally,” the complaint
must include sufficient factual allegations to meet the standard of facial plausibility. See Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).
A.

Judge McMahon

Judges are immune from suit, not just from the ultimate assessment of damages. See
Mireles v. Waco, 502 U.S. 9, 11 (1991). This immunity applies even to claims that a judge acted
in bad faith, erroneously, maliciously or “in excess of his authority.” See id. at 11; DiBlasio v.
Novello, 344 F.3d 292, 297 (2d Cir. 2003) (“[O]nce a court determines that an official was
functioning in a core judicial or prosecutorial capacity, absolute immunity applies however
erroneous the act may have been, and however injurious in its consequences it may have proved
to the plaintiff.”) (citations and internal quotation marks omitted), cert. denied, 541 U.S. 988
(2004). There are two situations in which judicial immunity may be overcome. A judge is not
immune from suit for actions not taken in his judicial capacity or for actions that are judicial in
nature but taken in the absence of all jurisdiction. See Mireles, 502 U.S. at 11 (citations
omitted).
Mr. Ramos alleges that Judge McMahon issued an arrest warrant that lacked probable
cause. Issuing an arrest or search warrant is a judicial act within the jurisdiction of a state court
judge. See Tucker v. Outwater, 118 F.3d 930, 932-37 (2d Cir.) (arraignment, setting bail, issuing
warrants are judicial activities), cert. denied, 522 U.S. 997 (1997); Fernandez v. Alexander, 419
7

F. Supp. 2d 128, 133 (D. Conn. 2006) (“The issuance of search warrants is an action taken in
defendant [Judge] Carroll’s judicial capacity.”). There are no allegations that Judge McMahon
engaged in actions that were not judicial in nature or were taken in the absence of all jurisdiction.
Thus, Judge McMahon is absolutely immune from suit and the claims against him are dismissed
under 28 U.S.C. § 1915(e)(2)(B)(i) - (iii).
B.

Chief State’s Attorney

Mr. Ramos describes the Chief State’s Attorney as being responsible for the Southeastern
Connecticut/New London County Cold Case Unit and the conduct of the unit. There is no other
mention of the Chief State’s Attorney in the Amended Complaint. Thus, the sole allegation
against the Chief State’s Attorney fails to state a violation of Mr. Ramos’ federally or
constitutional protected rights.
To the extent that Mr. Ramos is claiming that the Chief State’s Attorney approved the
affidavit in support of the application for a warrant to arrest him on September 18, 2012 and
submitted the arrest warrant application to be issued by Judge McMahon, the Chief State’s
Attorney is entitled to prosecutorial immunity. A prosecutor is protected by absolute immunity
from a Section 1983 action “for virtually all acts, regardless of motivation, associated with his
function as an advocate.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994). In Imbler v. Pachtman,
424 U.S. 409 (1976), the Supreme Court held that a state prosecutor was absolutely immune
from a civil suit to recover damages under Section 1983 because the prosecutor’s conduct “in
initiating a prosecution and presenting the State’s case” were “intimately associated with the
judicial phase of the criminal process.” Id. at 430-31. If a prosecutor acts in an investigative
rather than an adversarial capacity, he or she is not entitled to absolute immunity. See Kalina v.
8

Fletcher, 522 U.S. 118, 125-27 (1997) (holding that prosecutor was not protected by absolute
immunity because she was acting as an investigator when she signed a sworn affidavit attesting
to the facts supporting an arrest warrant).
Because a prosecutor’s conduct in applying for a warrant for an individual’s arrest is
closely associated with the initiation of judicial proceedings and conducting a trial, the Chief
State’s Attorney is immune from suit. See Imbler, 424 U.S. at 431 n. 33 (noting that prosecutors
may engage in an advocacy role when determining whether to bring charges or to seek a
warrant); Barr v. Abrams, 641 F. Supp. 547, 549-50 (S.D.N.Y. 1986) (prosecutors absolutely
immune for filing of information and applying for arrest warrant), aff’d, 810 F.2d 358 (2d Cir.
1987); Turner v. Boyle, 116 F. Supp. 3d 58, 80-81 (D. Conn. 2015) (dismissing claim that state’s
attorney sought arrest warrant and set bail terms because state’s attorney is entitled to absolute
immunity). The claims against the Chief State’s Attorney are dismissed under 28 U.S.C. §
1915(e)(2)(B)(i) -(iii).
C.

Fourth and Fourteenth Amendment Claims

The Fourth and Fourteenth Amendments’ protections include the right to be free from
arrests and prosecutions without probable cause. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996). “Claims for false arrest or malicious prosecution, brought under [Section] 1983 to
vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are
‘substantially the same’ as claims for false arrest or malicious prosecution under state law.”
Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003). In a Section 1983 action, the elements of
claims for false arrest and malicious prosecution are controlled by state law. See Davis v.
Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004); Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994).
9

Connecticut law defines false arrest or false imprisonment as “the unlawful restraint by
one person of the physical liberty of another.’” Russo v. City of Bridgeport, 479 F.3d 196, 204
(2d Cir. 2007) (internal quotation marks and citation omitted). To state a claim for malicious
prosecution under Connecticut law, the plaintiff must prove four elements: “(1) the defendant
initiated or continued criminal proceedings against [him]; (2) the criminal proceeding terminated
in favor of [him]; (3) ‘the defendant acted without probable cause’; and (4) ‘the defendant acted
with malice.’” Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009) (quoting McHale v.
W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815, 817 (1982)). Under both Connecticut law and
Section 1983, a plaintiff must allege that the prosecution terminated in his or her favor to state a
claim of malicious prosecution or false arrest. See id.; Miles v. City of Hartford, 445 F. App’x
379, 383 (2d Cir. 2011) (holding district court did not err in granting summary judgment on false
arrest claim because “the Court [has] expressly held, invoking Connecticut law, that favorable
termination is an element of ‘a section 1983 sounding in false imprisonment and false arrest’”)
(quoting Roesch v. Otarola, 980 F.2d 850, 853-54 (2d Cir. 1992)).
On April 29, 2016, a jury in the Connecticut Superior Court for the Judicial District of
New London found Mr. Ramos guilty of murder.2 A judge sentenced Mr. Ramos to sixty years
of imprisonment. Because Mr. Ramos’s criminal matter did not terminate in his favor, he cannot
prevail on the false arrest or malicious prosecution claim against the Defendants named in the
Amended Complaint. Thus, Mr. Ramos’ Fourth and Fourteenth Amendment claims are
dismissed. See 28 U.S.C. § 1915(e)(2)(B)(i) & (ii).

See State v. Ramos, Case No. KNL-CR-12-0119499-T. Information regarding Mr. Ramos’s criminal conviction
and sentence may be found at: http://www.jud.ct.gov/jud2.htm under Criminal/Motor Vehicle Case Look-up and
Searching by Case Number using KNL-CR-12-0119499-T and also may be found at: www.ctinmateinfo.state.ct.us
using Mr. Ramos’s inmate number, 293626.
2

10

D.

Fifth, Eighth, Ninth, Tenth, Fourteenth Amendment Claims

Mr. Ramos generally asserts that the conduct of the Defendants in the Amended
Complaint violated his Fifth, Eighth, Ninth and Tenth Amendment rights as well as his right to
equal protection under the Fourteenth Amendment. There are no facts to support plausible
claims under any of these constitutional provisions.
i.

Fifth Amendment

The Fifth Amendment Due Process Clause applies to the federal government, not to the
states. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of
the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth
Amendment prohibits the States, from depriving any person of property without “due process of
law.”); Poe v. Ullman, 367 U.S. 497, 540 (1961) (prohibitions “against the deprivation of life,
liberty or property without due process of law” set forth in Fourteenth Amendment are applicable
to state government and the same prohibitions in Fifth Amendment are applicable to “the Federal
Government”); 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).
Mr. Ramos has not alleged that a federal official violated his Fifth Amendment due
process rights. Nor has he otherwise alleged facts to state a claim under the Fifth Amendment.
Accordingly, the Fifth Amendment claim against Defendants is dismissed for failure to state a
claim upon which relief may be granted.

11

ii.

Eighth Amendment

The Eighth Amendment protection against cruel and unusual punishments applies only
after conviction. See Whitley v. Albers, 475 U.S. 312, 318 (1986) (“The Cruel and Unusual
Punishments Clause ‘was designed to protect those convicted of crimes,’ … and consequently
the Clause applies ‘only after the State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions.’”) (quoting Ingraham v. Wright, 430 U.S.
651, 671 n. 40 (1977)). Mr. Ramos’ allegations pertain to conduct that occurred in connection
with his arrest on criminal charges. Thus, the Eighth Amendment affords him no protection, and
his Eighth Amendment claim is dismissed.
iii.

Ninth Amendment

The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const.
Amend. IX. The Ninth Amendment is a rule of construction; it is not an independent source of
constitutional rights. See Griswold v. Connecticut, 381 U.S. 479, 492 (1995); Jenkins v. Comm’r
of I.R.S., 483 F.3d 90, 92-93 (2d Cir. 2007). Because a Section 1983 claim must be premised on
the violation of a right guaranteed by the United States Constitution or federal law, the Ninth
Amendment, which concerns only unenumerated rights, cannot serve as the basis for a Section
1983 claim. See Williams v. Perry, 960 F. Supp. 534, 540 (D. Conn. 1996) (“‘No independent
constitutional protection is recognized which derives from the Ninth Amendment and which may
support a § 1983 cause of action.’”) (quoting Rini v. Zwirn, 886 F. Supp. 270 (E.D.N.Y. 1995)).
The Ninth Amendment claim against Defendants is dismissed for failure to state a claim upon
which relief may be granted.
12

iv.

Tenth Amendment

The Tenth Amendment provides that “[t]he powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people.” Const. Amend. X. “An individual who challenges federal action on [Tenth
Amendment] grounds is, of course, subject to the Article III requirements, as well as prudential
rules, applicable to all litigants and claims.” Bond v. United States, 564 U.S. 211, 225 (2011).
“If, in connection with the claim being asserted, a litigant who commences suit fails to show
actual or imminent harm that is concrete and particular, fairly traceable to the conduct
complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot
hear the claim… These requirements must be satisfied before an individual may assert a
constitutional claim; and in some instances, the result may be that a State is the only entity
capable of demonstrating the requisite injury.” Id. (internal citations omitted). Mr. Ramos has
not alleged facts suggesting that he has met the prudential and standing requirements to bring a
Tenth Amendment claim as an individual litigant. Accordingly, the Tenth Amendment claim
against Defendants is dismissed.
v.

Fourteenth Amendment (Equal Protection)

The Supreme Court has recognized that “[t]he Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal
protection of the laws,’ which is essentially a direction that all persons similarly situated should
be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting
Plyler v. Doe, 457 U.S. 202, 216 (1982)). “This provision does not mandate identical treatment

13

for each individual.” Muhmmaud v. Murphy, 632 F. Supp. 2d 171, 178 (D. Conn. 2009) (citing
City of Cleburne, 473 U.S. at 439–40).
In order to prove a violation of the Equal Protection Clause, a plaintiff must demonstrate
evidence of “purposeful discrimination . . . directed at an identifiable or suspect class.” Giano v.
Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citations omitted). Thus, to prevail on an equal
protection claim, a plaintiff must allege that (1) compared with others similarly situated he or she
was treated differently; and (2) that such different treatment was based on impermissible
considerations such as “race, religion, national origin or some other constitutionally protected
characteristic.” See Colantuono v. Hockeborn, 801 F. Supp. 2d 110, 118 (W.D.N.Y. 2011)
(citation omitted).
Mr. Ramos does not allege that he was treated differently than other similarly situated
individuals. Nor does he allege that Defendants treated him differently because of his
membership in a protected class. Mr. Ramos has failed to state a claim that Defendants violated
his equal protection rights. The Fourteenth Amendment equal protection is dismissed for failure
to state a claim upon which relief may be granted.
For the reasons set forth above, Mr. Ramos’ unsupported claims for violations of his
Fifth, Eighth, Ninth and Tenth Amendment rights as well as his Fourteenth Amendment equal
protection rights are dismissed as lacking an arguable legal basis or for failure to state a claim
upon which relief may granted under 28 U.S.C. § 1915(e)(2)(B)(i) & (ii).
Conclusion
The Amended Complaint [ECF No. 23] is DISMISSED under 28 U.S.C. §
1915(e)(2)(B)(i) - (iii).
14

SO ORDERED at Bridgeport, Connecticut this 11th day of April, 2017.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

15