Cooke v. Deschaine et al
ORDER granting 28 Motion for Reconsideration, but denying the requested relief and affirming the 26 Initial Review Order in all respects; granting 29 Motion for Clarification; denying 34 Motion to Amend/Correct; denying without prejudice 37 Motion for Sanctions; denying without prejudice 38 Motion for Default Judgment; denying without prejudice 39 Motion for Default Judgment. Signed by Judge Stefan R. Underhill on 4/28/2017. (Landman, M)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KEITH DESCHAINE, et al.,
No. 3:16-cv-138 (SRU)
RULING ON PENDING MOTIONS
Ian Cooke, currently confined at Garner Correctional Institution, proceeds pro se in this
civil rights action. On December 15, 2016, I dismissed in part the claims in the second amended
complaint filed against a former Commissioner of Correction, the current Commissioner of
Correction, two directors of the Department of Correction security division, five employees of
Cheshire Correctional Institution and legal counsel for the Department of Correction. Pending
before me is Cooke’s motion for reconsideration of my ruling addressing the claims in the
second amended complaint, a motion for leave to file a third amended complaint, a motion for
clarification, a motion for sanctions and two motions for default judgment. For the reasons set
forth below, the motion for reconsideration is granted, but the relief requested is denied; the
motion for clarification is granted; and the motions for sanctions, to amend, and for default
judgment are denied.
Motion for Clarification [ECF No. 29]
Cooke states that he received notification from the court that a waiver of service of
summons had been sent to an individual named Jarvis Street. He seeks clarification whether
Jarvis Street has been added or substituted as a defendant. The motion for clarification is
granted. Jarvis Street is not a defendant named in the second amended complaint. Thus, it is
evident that the Clerk inadvertently sent a waiver of service of summons to Jarvis Street. Jarvis
Street is not a defendant in this action and he has not returned a waiver of service of summons or
Motion for Reconsideration [ECF No. 28]
On July 21, 2016, Cooke filed a second amended complaint pursuant 42 U.S.C. §§ 1983,
1985, and 1986, naming former Commissioner of Correction Leo C. Arnone, Commissioner
Scott Semple, former Director of Security Kim Weir, Director of Security Christine Whidden,
Warden Jon Brighthaupt, Deputy Warden Lauren Powers, Counselor Supervisor Garcia,
Lieutenant Hogan, Correctional Officer Keith Deschaine and Attorney Nancy Kase-O’Brasky as
defendants. See Second Am. Compl., ECF No. 25. On December 15, 2016, I dismissed the
section 1985 claims, the section 1986 claims, the section 1983 Fourteenth Amendment due
process claims against defendants Deschaine, Hogan, Garcia, Powers, Brighthaupt and Semple,
the section 1983 First Amendment retaliation claim against defendants Powers and Garcia, and
all section 1983 claims against defendant and Kase-O’Brasky pursuant to 28 U.S.C. §
1915A(b)(1). See Initial Review Order, ECF No. 26. I concluded (1) that the section 1983
claims against Arnone remained in the case, but Commissioner Semple would be substituted for
Arnone because he is the current Commissioner; (2) that the First Amendment free speech claims
asserted pursuant to 42 U.S.C. § 1983 would proceed against defendants Deschaine, Hogan,
Garcia, Powers and Brighthaupt in their individual capacities and against defendants Weir,
Whidden, and Semple in their official capacities; and (3) that the state law negligence claim
would proceed against defendants Deschaine and Hogan in their individual capacities. Cooke
seeks reconsideration of all dismissed claims.
Pursuant to Rule 7(c) of the Local Civil Rules of the United States District Court for the
District of Connecticut, “[m]otions for reconsideration shall not be routinely filed and shall
satisfy the strict standard applicable to such motions.” Generally, reconsideration will be granted
only if the moving party can identify “controlling decisions or data that the court overlooked”
and that would reasonably be expected to alter the court’s decision. Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995). A party’s identification of “an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice” may also constitute sufficient reasons to grant a motion for reconsideration.
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir.
2013) (citation and internal quotation marks omitted). A party may not, however, use a motion
for reconsideration to re-argue prior issues that have already been decided, present “new
theories” or arguments that could have been raised earlier, seek a new hearing on the merits, or
otherwise take “a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684
F.3d 36, 52 (2d Cir. 2012) (citation omitted).
Cooke first contends that I improperly dismissed his Fourteenth Amendment claim for
deprivation of property without due process. In a later section of the motion for reconsideration,
Cooke suggests that I did not address his procedural due process claim as it relates to the
defendants’ confiscation of his personal property items and their alleged failure to return the
items to him or permit him to send the items home.
I considered Cooke’s allegations regarding the confiscation of his personal property items
and the defendants’ refusal to return the items as a claim that the defendants had deprived him of
his property without providing him with procedural due process. Pursuant to the Supreme
Court’s holding in Hudson v. Palmer, 468 U.S. 517, 533 (1984), an inmate’s procedural due
process rights are not violated when the inmate loses his or her personal belongings due to the
negligent or intentional actions of correctional officers if the state provides an adequate postdeprivation compensatory remedy. In reviewing Cooke’s allegations, I noted that, although he
had filed a claim with the Department of Correction’s Lost Property Board, he had not alleged
that he had pursued his deprivation or confiscation of property claim through the Office of the
Claims Commissioner. See Initial Review Order at 6, ECF No. 26. I dismissed the claim
because Cooke had not alleged that the Department of Correction’s procedures for processing
property claims were inadequate. See id. (citing Edwards v. Erfe, 588 F. App’x 79, 80–81 (2d
Cir. 2015) (affirming dismissal of inmate’s deprivation of property claim on the ground that the
inmate had not alleged that process provided by the State of Connecticut, including the
opportunity to seek relief through the Office of the Claims Commissioner, was inadequate)).
Cooke questions whether the state law remedy provided by the Claims Commissioner is
really adequate. Cooke suggests the remedy is inadequate because it does not provide for
declaratory or injunctive relief. Cooke, however, does not seek injunctive or declaratory relief
with regard to the confiscation/deprivation of his property.
Cooke has not alleged that he has attempted to file or utilize the procedure available to
file a claim under Conn. Gen. Stat. § 4-141 et seq. Thus, I conclude that Cooke has not pointed
to any facts or decisions that I overlooked in reaching its conclusion that the state law remedy
was adequate because he still has an avenue for relief through the Office of the Claims
Commissioner. Rather, Cooke simply disagrees with my ruling. The motion for reconsideration
is granted with regard to the Fourteenth Amendment due process claim, but the relief requested
Cooke next argues that I erred in dismissing as time-barred the retaliation claim against
Deputy Warden Powers and Counselor Supervisor Garcia. He contends that I should not have
dismissed the retaliation claim because Cooke included a general retaliation claim in the first
amended complaint. After reviewing the allegations in the first amended complaint, I concluded
that it violated the Federal Rules of Civil Procedure 8 and 20, governing pleading and joinder,
because it included claims regarding multiple, different incidents that had occurred at two
different facilities over a three-year period. I directed Cooke to file a second amended complaint
that raised only claims arising out of one factual incident at one facility. Cooke’s retaliation
claim in the second amended complaint is not the same as the retaliation claim he raised in his
first amended complaint. In the first amended complaint, he included a retaliation claim related
to his removal from protective custody by defendants Powers and Garcia in early May 2013. In
the second amended complaint, he alleged a claim of retaliation regarding his transfer to another
prison facility in late May 2013. This retaliatory transfer claim against defendants Powers and
Garcia was a new claim that was not included in the first amended complaint.
Because the transfer occurred in May 2013, and the second amended complaint was filed
in July 2016, the claim was barred by the three-year statute of limitations. See Initial Review
Order at 7, ECF No. 26. Cooke has pointed to no facts that I overlooked in dismissing the
retaliation claim against defendants Powers and Garcia for failure to file within the applicable
statute of limitations. The motion for reconsideration is granted with regard to the dismissal of
the retaliatory transfer claim, but the relief requested is denied.
Cooke also contends that I erred in dismissing the claims against Attorney KaseO’Brasky. He suggests that the allegations in the second amended complaint should be
construed as a claim that Attorney Kase-O’Brasky has been involved in or has ratified the
ongoing application of Administrative Directive 10.7 by Department of Correction officials.
Cooke specifically asserted claims against Attorney Kase-O-Brasky in her official capacity. He
alleged that she assisted former Commissioner Arnone in researching and drafting the revisions
to Administrative Directive 10.7 in June 2012. Because there were no facts in the second
amended complaint from which it could be inferred that Attorney Kase-O’Brasky was involved
in the implementation or enforcement of the revised Administrative Directive, I dismissed the
claims for declaratory and injunctive relief against her. See id. at 8 (citing Ex Parte Young, 209
U.S. 123, 157 (1908) (“In making an officer of the State a party defendant in a suit to enjoin the
enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some
connection with the enforcement of the act . . . .ˮ); Sabin v. Nelson, 2014 WL 2945770, at *3
(N.D.N.Y. June 30, 2014) (dismissing claims against Governor Cuomo because plaintiff “failed
to make any allegations whatsoever with respect to the Governor’s role in enforcement of any of
the statutes at issue, or with any acts taken pursuant thereto”) (citation omitted)).
Cooke has not identified any facts that I overlooked and instead asserts a new basis upon
which to impose liability against Attorney Kase-O’Brasky that was not included in the second
amended complaint. A motion for reconsideration is not to be used to assert new claims for
relief or new arguments that could have been asserted previously. See Analytical Surveys, 684
F.3d at 52. Accordingly, the motion for reconsideration is granted, but after careful review, the
request to reinstate of Attorney Kase-O’Brasky as a defendant is denied.
As his final argument, Cooke contends that I should reinstate the official capacity claims
against Deschaine, Garcia, Powers and Brighthaupt. Although Cooke asserted claims against
defendants Deschaine, Garcia, Powers and Brighthaupt in their individual and official capacities,
the type of injunctive and declaratory relief1 sought by Cooke can only be provided by the
supervisory officials who were named as defendants, Commissioner Semple and Security
Directors Whidden and Weir. Thus, I concluded that only the claims for money damages would
proceed against defendants Deschaine, Garcia, Powers and Brighthaupt and that the claims for
official-capacity relief, both declaratory and injunctive, would only proceed against defendants
Weir, Whidden and Semple, who were sued in their official capacities only. Because defendants
Deschaine, Garcia, Powers and Brighthaupt cannot provide Cooke the type of injunctive and
declaratory relief that he seeks in the second amended complaint, I do not re-instate those claims
for relief against them. Accordingly, the motion for reconsideration is granted with regard to the
Cooke seeks a declaration that defendants Deschaine, Hogan, Garcia, Powers and Brighthaupt violated
his constitutional rights and a declaration that the review guidelines for sexually-oriented media as set forth in
Administrative Directive 10.7 are unconstitutional as applied and as written. The purpose of the Declaratory
Judgment Act is to allow parties to resolve claims before either side suffers great harm. See In re Combustion
Equip. Assoc., 838 F.2d 35, 37 (2d Cir. 1988). In Ex Parte Young, 209 U.S. at 155-56, the Supreme Court held that
an exception to the Eleventh Amendment’s grant of sovereign immunity from suit existed to permit a plaintiff to sue
a state official acting in his or her official capacity for prospective injunctive relief for continuing violations of
federal law. Id. The exception to Eleventh Amendment immunity, however, does not apply to claims against state
officials seeking declaratory or injunctive relief for prior violations of federal law. See Puerto Rico Aqueduct and
Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (the Eleventh Amendment “does not permit
judgments against state officers declaring that they violated federal law in the past”); Green v. Mansour, 474 U.S.
64, 68 (1985) (“We have refused to extend the reasoning of Young . . . to claims for retrospective relief.” (citations
omitted)); Ward v. Thomas, 207 F.3d 114, 119–20 (2d Cir. 2000) (Eleventh Amendment bars retrospective relief in
form of declaration that State of Connecticut violated federal law in the past). Thus, Cooke’s request for a
declaration that defendants Deschaine, Hogan, Garcia, Powers and Brighthaupt violated his federal constitutional
rights in 2013 cannot be properly characterized as “prospective” because Cooke does not allege how such relief
would remedy a future constitutional violation by the defendants. Thus, Cooke’s request for declaratory relief
against defendants Deschaine, Hogan, Garcia, Powers and Brighthaupt does not meet the exception to the Eleventh
Amendment immunity set forth in Ex Parte Young.
official capacity claims for relief against defendants Deschaine, Garcia, Powers and Brighthaupt,
but after careful reconsideration the relief requested is denied.
Motion for Leave to Amend [ECF No. 34]
Cooke seeks to add a state law claim against Commissioner Semple and Attorney Nancy
Kase-O’Brasky, who has been dismissed from the case. Cooke asserts that those individuals
revised State of Connecticut Administrative Directive 10.7 in violation of the Uniform
Administrative Procedures Act, Connecticut General Statutes § 4-166 et. seq. He contends that
Administrative Directive 10.7 does not mirror, word-for-word, Connecticut Regulations § 18-8128. He concludes, therefore, that the Department of Correction circumvented state regulations
in enacting the revisions to Administrative Directive 10.7 regarding sexually explicit materials.
Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, after the time to amend
as of right has passed, “[t]he court should freely” grant leave to amend “when justice so
requires.” In considering whether to grant a litigant leave to amend under Rule 15(a), the court
considers such factors as undue delay, bad faith, dilatory motive, undue prejudice and futility of
the amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962).
State courts are “the ultimate expositors of state law.” Mullany v. Wilbur, 421 U.S. 684,
691 (1975). If the state’s highest court has not addressed the issue, the federal court is bound by
the decision of the state intermediate court. See Ponnapula v. Spitzer, 297 F.3d 172, 183 (2d Cir.
2002) (citing Estelle v. McGuire, 502 U.S. 62, 66, 67–68 (1976)). The Connecticut Appellate
Court has held that the Department of Correction Administrative Directives interpret and apply
properly promulgated regulations. The directives “are created for the internal management of the
correctional institutions and are not regulations that are subject to the [Uniform Administrative
Procedure Act (“UAPA”)] requirements. 4-166(13)(A).” Pierce v. Lantz, 113 Conn. App. 98,
104–05, cert. denied, 293 Conn. 915 (2009). Because the state court has concluded that the
administrative directives are not regulations, they are not subject to the UAPA. I am bound by
that determination. Thus, Cooke’s claim regarding a violation of the UAPA lacks an arguable
Ultimately, I decline to allow Cooke to add this state law claim because I conclude that it
would be futile to do so. See Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir.
2008) (although “leave to amend should be granted when justice so requires,” circumstances
involving “futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies
by amendments previously allowed, or undue prejudice to the non-moving party” require denial
of a motion for leave to amend) (internal quotation marks and citations omitted); Dougherty v. N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (a proposal to amend a
complaint is futile if the proposed amendment would fail to state a claim upon which relief could
be granted). Accordingly, the motion for leave to amend is denied.
Motion for Sanctions and for Default Judgment [ECF Nos. 37, 38, 39]
Cooke seeks a default judgment against the defendants for failure to plead. Cooke also
seeks sanctions including an order holding the defendants’ in contempt and the imposition of
penalties. I have not yet entered an order defaulting the defendants for failure to plead. Thus,
the motions seeking a default judgment are premature and are denied. Similarly, the motion for
sanctions is denied without prejudice.
The Motion for Clarification [ECF No. 29] is GRANTED. Jarvis Street is not a
defendant in this action and he has not returned a waiver of service of summons or appeared.
The Motion for Reconsideration [ECF No. 28] of the court’s Initial Review Order, [ECF No.
26] dismissing in part the claims in the second amended complaint is GRANTED. After careful
review, the relief requested is DENIED and the Initial Review Order, [ECF No. 26], is
AFFIRMED in all respects. The Motion for Leave to Amend/Correct [ECF No. 34] is
DENIED. The Motions for Default Judgment [ECF Nos. 38, 39] are DENIED as premature.
The Motion for Sanctions [ECF No. 37] is DENIED without prejudice.
SO ORDERED at Bridgeport, Connecticut this 28th day of April 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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