Dorlette v. Semple et al

Filing 63

ORDER denying 61 Motion for Preliminary Injunction. See attached Ruling and Order. Signed by Judge Vanessa L. Bryant on 10/13/2017. (Hoffman, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

FAROULH DORLETTE,
Plaintiff,
v.
SCOTT S. SEMPLE, et al.,
Defendants.

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PRISONER
Civil No. 3:15cv1200(VLB)

RULING AND ORDER
The plaintiff, Faroulh Dorlette, is currently incarcerated at Northern
Correctional Institution (“Northern”) in Somers, Connecticut. He initiated this
action by filing a civil rights complaint against Commissioner Scott Semple,
former Commissioners of Correction James Dzurenda and Leo Arnone, Director
of Security C.M. Whidden, District Administrator John Doe 1, and Director of
Classification and Population Management John Doe 2. Pending before the court
is the plaintiff’s motion seeking injunctive relief. For the reasons set forth below,
the motion will be denied.
I.

Motion for Emergency Preliminary Injunction [ECF No. 61]
On August 22, 2016, the plaintiff filed an ex parte motion seeking a

preliminary injunction enjoining his security group designation and housing in
segregation. On September 7, 2016, the plaintiff informed the Clerk that he had
been transferred to a prison facility in Vermont. See Notice, ECF No. 26.
On October 26, 2016, after providing the Department of Correction with
notice of the plaintiff’s motion, the court held a hearing to address the motion’s

request for relief. Assistant Attorney General Terrence M. O’Neill appeared for
the Department of Correction and the plaintiff appeared for himself. After the
hearing, the court denied the motion seeking injunctive relief as moot because,
the evidence adduced at the hearing revealed that pursuant to a 2014 settlement
agreement between the Connecticut Department of Correction and the plaintiff,
Department of Correction officials had transferred the plaintiff to a prison facility
in Vermont and prison officials in Vermont had assigned the plaintiff to a
minimum security classification. See Mem. Order, ECF No. 39. The court also
concluded that the plaintiff’s future housing under a Security Risk Group
designation was not likely to be capable of repetition. See id. The court noted
that the plaintiff could renew his motion if became incarcerated in a Connecticut
prison facility in the future as a Security Risk Group Member. See id.
Seven months after the hearing, on May 12, 2017, the plaintiff filed a notice
of a change of address dated May 10, 2017, indicating that he had been
transferred back to Connecticut and was confined at Corrigan-Radgowski
Correctional Institution (“Corrigan”). See ECF No. 52. On that same date, the
plaintiff filed an ex parte motion seeking to reopen the case and to have the court
revisit his previous motion for injunctive relief. On June 5, 2017, the court
permitted the plaintiff to renew his motion for injunctive relief. He filed an ex
parte motion for injunctive relief on July 12, 2017. The court denied the motion
without prejudice because the plaintiff had filed it ex parte. On September 5,
2017, the plaintiff filed the same motion seeking injunctive relief, but did not
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include “ex parte” in the designation on page one of the motion. That motion is
currently pending before the court.
In his motion, Plaintiff claims that he “has been segregated from the
general inmate population illegally for the past ten (10) years, in harsh conditions
of confinement and without any or meaningful periodic review to return to the
general inmate population.” [Dkt. No. 61-1 at 1]. He claims to have been in
segregation since August 23, 2006 because he is classified as a gang member
although he is “not an active member of a gang.” Id. at 4. Plaintiff claims he is
suffering irreparable harm as evidenced by his current and past hunger strikes in
protest of his designation, the permanent physical harm which a hunger strike
can cause, and restrictions on his rights of association, exercise of religion, and
liberty.
A.

Standard of Review

Preliminary injunctive relief “is an ‘extraordinary and drastic remedy . . .
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) (internal quotation marks and citation omitted). To warrant
preliminary injunctive relief, the moving party must demonstrate (a) that he or she
will suffer “irreparable harm” in the absence of an injunction, and (b) either (1) a
“likelihood of success on the merits or (2) sufficiently serious questions going to
the merits [of the case] to make them a fair ground for litigation and a balance of
hardships tipping decidedly toward the party requesting preliminary injunctive
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relief.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir. 2011) (internal
quotation marks omitted).
Inmates do not forfeit all of their constitutional rights at the prison gates.
Wolff v. McDonnell, 418 U.S. 539, 555(1963). That having been said, they do
forfeit many rights enjoyed by lawful individuals. “[L]awful incarceration brings
about the necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal system.” Jones v.
North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977) (quoting
Price v. Johnston, 334 U.S. 266, 285 (1948)). It is expected that prison officials
will discipline inmates to encourage compliant and discourage deviant behavior,
and thus discipline is an expected and usual condition of prison confinement.
Price, 334 U.S. at 285. Administrative segregation is the sort of confinement that
inmates should reasonably anticipate receiving at some point in their
incarceration, particularly where warranted to assure prison safety. Hewitt v.
Helms, 459 U.S. 460, 473 (1993). Prison security is jeopardized by prison gangs.
Wilkinson v. Austin, 545 U.S. 209, 213 (2005). It is wholly permissible to impose
discipline to assure that gang culture and warfare do not pose a risk to the safety
of prison inmates and staff.
A hearing is generally required on a properly supported motion for
preliminary injunction if material facts are in dispute. See Kern v. Clark, 331 F.3d
9, 12 (2d Cir. 2003) (“the existence of factual disputes necessitates an evidentiary
hearing . . . before a motion for preliminary injunction may be decided.”) (internal
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quotation marks and citation omitted). “[W]hen the relevant facts either are not in
dispute or have been clearly demonstrated at prior stages of the case . . . or when
the disputed facts are amenable to complete resolution on a paper record,” a
hearing is not required to resolve a motion for preliminary injunction. Charette v.
Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir. 1998) (citations omitted). The
court concludes that that the motion seeking injunctive relief may be resolved
without a hearing.
B.

Discussion

The plaintiff has designated his motion as a motion seeking preliminary
injunctive relief. He requests a court order directing the defendants to release
him from segregation and transfer him to general population. In support of his
motion, the plaintiff has filed a document designated as “Supplemental
Information Provided in Ex Parte.” See ECF No. 62. This document is not signed
by the plaintiff. Rule 11 of the Federal Rules of Civil Procedure requires that
“[e]very pleading, written motion, and other paper must be signed by at least one
attorney of record in the attorney’s name—or by a party personally if the party is
unrepresented.” Because the document designated “Supplemental Information”
is unsigned and does not comply with Rule 11, and the court has previously
directed the plaintiff not to file his requests for injunctive relief ex parte, the court
does not consider the “Supplemental Information” in deciding the motion seeking
injunctive relief.

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Plaintiff claims that he is irreparably injuring himself by engaging in a
hunger strike. He states that he is protesting the harmful conditions of
confinement in segregation. He asserts that he has engaged in hunger strikes
and also tried to harm or kill himself by swallowing razor blades in the past. He
contends that he could suffer kidney and liver damage or death as a result of the
hunger strike.
The plaintiff has voluntarily engaged in a hunger strike. He claims that he
is refusing to eat because he is depressed by his conditions of confinement,
however, he does not allege that he has sought treatment for his depression or
that treatment was unavailing. He does acknowledge that he has engaged in
hunger strikes in the past and has taken other steps to harm himself, all of which
have been abated. This suggests that he has the ability not to harm himself or
that treatment has enabled him to stop harming himself.1 He does not allege that
the hunger strike has caused harm to his health. Instead, he states that the
hunger strike might cause damage to his liver or kidneys, rendering his claim
wholly speculative. Whether he decides to end the hunger strike on his own or
accept treatment for his depression so that he will not be inclined towards self-

The court notes that in response to hunger strikes by the plaintiff in 2013,
2014 and 2016, the Department of Correction has initiated actions in state court to
enjoin the plaintiff from interfering with his treatment by Department of
Correction health staff, including hospitalization, intravenous fluids and/or
nourishment, nasogastric feeding and other healthcare measures necessary to
preserve his life or health. See Semple v. Dorlette, Case No. HHD-CV16-6070450S (Conn. Super. Ct. Aug. 10, 2016) (Compl., Dkt. Entry 100.31 filed August 10,
2016). These prior state court actions suggest that the Department of Correction
has and will continue to monitor the plaintiff’s health in connection with the
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harm is a decision within his control. The court concludes that the plaintiff has
not alleged that he is in danger of imminent harm as a result of actions of the
defendants. Rather the plaintiff has subjected himself to a condition which he
describes as only potentially harmful to his health. The motion for injunctive
relief is denied.
The plaintiff states that he has been designated as a Security Risk Group
Member but is not an active member of any gang and that he has been deprived
of any or meaningful review of his classification. He complains that he has been
deprived of procedural due process because he “has not received meaningful
periodic reviews” of his classification as a member of a security risk group. The
plaintiff does not address the fact that he had only been returned to a
Connecticut prison facility as of May 2017, when he initially sought leave to file a
new motion for injunctive relief. Furthermore, upon his return to Connecticut
from Vermont, the plaintiff was confined at Corrigan, not Northern. The plaintiff
does not explain when or how Connecticut prison officials made the
determination to re-classify him as a Security Risk Group Member and to transfer
him to Northern.
State of Connecticut Department of Correction Administrative Directive
6.14 provides that prison officials are required to hold a periodic review of “any
inmate’s designation as a Security Risk Group Member as new information
arises, or at least every six (6) months, to determine whether the inmate should

alleged current hunger strike.
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remain on this status.” See State of Connecticut Department of Correction
Administrative Directive 6.14(9) (Six (6) Month Review of Security Risk Group
Member Designation), available at www.ct.gov/dos/LIB/doc/PDF/AD/ad0614.pdf.
Once again, plaintiff makes a patently false claim. At the time the plaintiff filed
his motions for injunctive relief, he had not been confined at Northern as a
Security Risk Group Member for six months. Thus, contrary to his claim, plaintiff
is afforded regular periodic review of his status. In addition, the applicable
regulations afford him more frequent reviews where circumstances warrant such
an interim review. Plaintiff does not allege that a change in circumstances
warranting a review occurred. The only possible circumstance would be his
hunger strike, a circumstance of his own making. Thus, the court concludes that
the DOC directives provide reasonable reviews of an inmate's status, that plaintiff
does not credibly allege that that he was denied a review, and further that plaintiff
has not alleged that he will suffer imminent harm because of the acts or
omissions of any defendant if his request for injunctive relief, based on his
claimed denial of periodic reviews, is not granted.
Even if plaintiff had alleged sufficient facts to raise a genuine issue of
irreparable injury he is unlikely to prevail on the merits and the facts alleged do
not raise sufficient facts going to the merits or tip the hardships in his favor.
Plaintiff claims that he was deprived of his liberty rights by virtue of the length of
time he has been confined in a segregated unit based on his gang affiliation
classification. An inmate is entitled to freedom from restraint that “imposes
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atypical and significant hardship . . . in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
As indicated above, Plaintiff was transferred from Connecticut, where he
was segregated in a restricted housing unit, to Vermont on September 7, 2016
where he was housed in general population. Vermont transferred the plaintiff
back to Connecticut at some point prior to May 10, 2017, approximately eight
months later. Connecticut prison officials confined the plaintiff at Corrigan until
some point between May 10, 2017 and July 12, 2017, when he filed the ex parte
motion seeking injunctive relief from being housed in a restrictive unit, [ECF No.
58], after which prison officials in Connecticut transferred the plaintiff from
Corrigan to Northern. Thus Plaintiff has not been housed in segregation
continuously for ten years as he claims. He was housed in general population
from approximately September 2006 to July 2007. His confinement in segregation
has been intermittent.
Further, in determining whether confinement constitutes an atypical and
significant hardship courts must consider not only the duration of the
confinement, but also the reason for the confinement. Id. Applying that
standard, 270 days of disciplinary confinement in New York SHU was held not to
constitute an atypical and significant hardship” under Sandin. See Carter v.
Carriero, 905 F. Supp. 99, 104 (W.D.N.Y. 1995). However, in Lee v. Coughlin, 902
F. Supp. 424 (S.D.N.Y. 1995), the Court found that 376 days of punitive
confinement in the SHU imposed an “atypical and significant hardship” for an
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inmate serving a two-year sentence. Plaintiff fails to assert sufficient facts to
raise a genuine issue of a fact that his confinement has posed a substantial and
atypical hardship based on the length of time he has been confined in a
restrictive housing unit and the facts he has asserted suggest that he has not
suffered a hardship on that basis alone.
The plaintiff complains about the conditions of confinement at Northern
and the lack of periodic reviews. The plaintiff states that the Department of
Correction permits an inmate designated as Security Risk Group Member to
participate in visitation, but only with immediate family members. The plaintiff
claims that he does not have any immediate family members. The plaintiff also
states that he is a Muslim. He contends that prison officials have denied him
participation in congregate religious services, such as Ju’Mah. However, the
plaintiff has not alleged that the conditions at Northern, denial of visitation with
individuals who are not immediate members of his family or denial of
participation in Muslim group prayer have caused him to suffer irreparable harm
or will cause him to suffer irreparable harm. He concedes that he may contact
non-immediate family members by telephone and in writing. The fact that prison
officials might sanction him with loss of telephone or mail privileges if he were to
be found guilty of a disciplinary infraction in the future is speculative at best.
Nor does the plaintiff state that he is unable to pray in his cell.

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C.

Conclusion

The court has determined that the conditions of confinement described by
the plaintiff in his motion seeking injunctive relief do not and will not subject him
to irreparable or imminent harm. Absent any allegations of irreparable injury, the
plaintiff fails to satisfy the first requirement for the issuance of injunctive relief.
Because there is no showing of irreparable harm, the court need not examine the
other requirements for the issuance of injunctive relief. See Kamerling v.
Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (“The showing of irreparable harm is
perhaps the single most important prerequisite for the issuance of a preliminary
injunction, and the moving party must show that injury is likely before the other
requirements for an injunction will be considered.”) (internal quotation marks,
modifications, and citations omitted). Notwithstanding this failure, to show
irreparable injury, the court has considered the merits of plaintiff's claims and
find them lacking. Accordingly, the motion for injunctive relief is denied.
II.

Payment of Filing Fee
When the plaintiff filed this action, he sought leave to proceed in forma

pauperis. On September 1, 2016, the court granted the plaintiff leave to proceed
in forma pauperis. [See ECF No. 23]. On November 1, 2016, the court discovered
additional facts and on that basis vacated its prior order granting the plaintiff
leave to proceed in forma pauperis in this action and ordered the plaintiff to pay
the filing fee within twenty-one days. The court cautioned the plaintiff that the
case would be dismissed with prejudice if the fee was not received by the Clerk
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within the time specified. On November 14, 2016, the plaintiff filed a notice to
appeal the order vacating the order granting the application to proceed in forma
pauperis.
On March 13, 2017, the United States Court of Appeals for the Second
Circuit issued a Mandate dismissing the plaintiff’s appeal. In it the Second Circuit
court of Appeals stated: the appeal is dismissed effective February 7, 2017
unless by that date appellant either pays the fee in full, moves for in forma
pauperis status in district court or, if district court has denied in forma pauperis
status, moves in this Court for in forma pauperis status. If appellant has filed the
motion in district court and the motion is pending, appellant must so advise this
Court in writing by the same date.” To date, plaintiff has not tendered the filing
fee. Accordingly, this action will be dismissed with prejudice pursuant to Federal
Rule of Civil Procedure 41(b) for failure to comply with a court order directing the
plaintiff to submit the filing fee, [ECF No. 43]. Just as plaintiff failed to comply
with this court’s order, as of this date, fully six months after the date of the
Mandate, plaintiff has also failed to comply with the order of the court of appeals.
ORDERS
The Motion for Preliminary Injunction [ECF No. 61] is DENIED. This action
is DISMISSED with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for
the plaintiff’s failure to comply with a court order, [ECF No. 43], directing him to
submit the filing fee on or before November 22, 2016.

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So ordered at Hartford, Connecticut.

___/s/__________________________
Vanessa L. Bryant
United States District Judge

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