Riddick v. Semple et al

Filing 51

ORDER granting as set forth in the opinion 7 Motion for Order to Show Cause; granting as set forth in the opinion 7 Motion for TRO; granting as set forth in the opinion 7 Motion for Preliminary Injunction; denying 10 Motion for Order to Show Cause; denying 10 Motion for TRO; denying 10 Motion for Preliminary Injunction; denying 11 Motion for TRO; denying 11 Motion for Preliminary Injunction; denying 12 Motion to Appoint Counsel; denying 14 Motion for Preliminary Injunction; d enying as moot 18 Motion for Extension of Time to File Response/Reply; denying 20 Motion for Order; denying 22 Motion for Preliminary Injunction; denying 23 Motion for Preliminary Injunction; denying as moot 27 Motion to Amend/Correct. Signed by Judge Stefan R Underhill on 2/22/2019 (Pincus, A).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JEROME RIDDICK,
Plaintiff,
v.
SCOTT SEMPLE, et al.,
Defendants.

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No. 3:18-cv-313 (SRU)

ORDER
Plaintiff, Jerome Riddick, has filed six motions for emergency or preliminary injunctive
relief, a motion for declaratory ruling, a motion for appointment of counsel, a motion for
extension of time, and a motion to amend. The court considers those ten motions below.
I.

Motions filed in Multiple Cases ECF Nos. 10, 11, 12, 18

Two motions seeking emergency orders for preliminary injunctive relief, ECF Nos. 10
and 11, the motion for extension of time, ECF No. 18, and the motion for appointment of
counsel, ECF No. 12, include multiple case numbers. Riddick filed these same motions in six
cases. The court has considered all four motions in Al-Bukhari a/k/a Riddick v. Department of
Correction, Case No. 3:16-cv-53(SRU). The court denied the two motions for emergency order
on September 21, 2018, in ECF No. 193. The court noted that the subject of the motions, an
order to prevent the defendants from limiting his ability to communicate with Inmates’ Legal Aid
Program personnel, was not an appropriate topic for a request for emergency relief. The court
denied the motions without prejudice to refiling in proper form. Riddick did not refile the
motions. Motions for Emergency Order, ECF Nos. 10 and 11, are denied for the reasons stated

in the prior ruling in Case No. 3:16-cv-53(SRU).
Riddick’s motion for extension of time seeks additional time to reply to the defendants’
response to motion for emergency order, ECF No. 11. Because that motion has been denied
without a response, the motion for extension of time is denied as moot.
The court denied the identical motion for appointment of counsel in Case No. 3:16-cv-53,
at ECF No. 208. The court noted that Riddick sought appointment of counsel in several cases
that were at different stages of litigation. He failed to consider the different stages and failed to
address why he was unable to litigate on his own. Riddick’s motion for appointment of counsel,
ECF No. 12, is denied for the reasons stated in the prior ruling in Case No. 2:16-cv-53(SRU).
II.

Emergency Motion for Order to Show Cause, ECF No. 7

Riddick asks the Court to order the defendants show cause why a temporary restraining
order should not issue to preserve a notebook that was confiscated on December 8, 2017.
Riddick states that, in addition to containing evidence used support of a disciplinary charge, the
notebook contains addresses and telephone numbers of Riddick’s loved ones and other personal
information. The court construes this motion as a motion for preservation of evidence.
Riddick alleges that the notebook was confiscated in December 2017. Although Riddick
states that the defendants have refused to return the notebook because it is evidence, he does not
indicate that he made any request to the defendants to preserve the notebook and does not
indicate whether the notebook was in the defendants’ possession several months later when he
drafted this motion.
Riddick’s motion is granted to the extent that, if the defendants have Riddick’s notebook,
they are directed to preserve it pending resolution of this case.
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III.

Emergency Motion for Preliminary Injunction ECF No. 14

Riddick seeks an injunction ordering the defendants to credit time he spent in
Administrative Segregation and Punitive Segregation to the time he must remain in the Security
Risk Group Program.
The same standard is used to evaluate requests for temporary restraining order and
preliminary injunction. Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. New York
Shipping Ass’n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992). Interim injunctive relief “is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Grand River Enterprise Six Nations Ltd. v. Pryor,
481 F.3d 60, 66 (2d Cir. 2007) (citation omitted). To prevail, Riddick must demonstrate “that he
is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.” Glossip v. Gross, ___ U.S. ___, 135 S. Ct. 2726, 2736 (2015) (internal
quotation marks and citation omitted). The Second Circuit considers a showing of irreparable
harm the most important requirement for an award of preliminary injunctive relief. NAACP v.
Town of East Haven, 70 F.3d 219, 224 (2d Cir. 1995).
Riddick argues that he is suffering irreparable harm as a result of prolonged confinement
in Phase 1 of the Security Risk Group Program. In support of his motion, Riddick cites cases
holding that, for purposes of analyzing a due process claim, consecutive periods of confinement
in restrictive housing must be aggregated when considering whether the inmate was subjected to
atypical and significant conditions of confinement. See, e.g., Giano v. Selsky, 238 F.3d 223, 226
(2d Cir. 2001).
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Whether Riddick was subjected to an atypical and significant hardship as required to state
a due process claim under Sandin v. Conner, 515 U.S. 472 (1995), is unrelated to this request for
relief. Riddick does not allege in his motion that he was not afforded process in connection with
each period of confinement in restrictive housing. Instead, he merely disputes how the time is
allocated. Thus, the cases Riddick cites provide no authority for a claim based on the failure to
count the time Riddick spent in Administrative or Punitive Segregation as time served in the
Security Risk Group Program. Research reveals no authority for such a claim. Thus, Riddick
has not demonstrated a likelihood of success on the merits of his claim. The motion for
preliminary injunctive relief is denied.
IV.

Emergency Motions for Preliminary Injunction ECF Nos. 22, 23

In these motions, Riddick argues that the defendants have violated his First Amendment
rights by punishing him for the content of his telephone conversations to persons outside of the
prison system. As explained above, Riddick must demonstrate that he is likely to succeed on the
merits of his claim to obtain preliminary injunctive relief. See Glossip, ___ U.S. at ___, 135 S.
Ct. at 2736.
Although inmates do not forfeit all the protections afforded by the Constitution when
they enter a correctional facility, the nature of confinement “and the needs of the penal institution
impose limitations on constitutional rights, including those derived from the First Amendment
….” Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 125 (1977). Riddick retains only
those First Amendment rights “that are not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.” Turner v. Safley, 482 U.S. 78, 95
(1987) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)); see also Muhammad v. Evans,
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2014 WL 4232496, at *12 (S.D.N.Y. Aug. 15, 2014) (“Some limitations on the freedoms of the
First Amendment must be expected in the prison context due to the needs of the penal institution,
including valid objectives such as deterrence of crime, rehabilitation of prisoners, and
institutional security.” (citiations omitted)); US v. Lamell, 2012 WL 5285383, at *7 (D. Vt. Oct.
25, 2012) (holding that recording inmate telephone conversations furthers legitimate interest in
prison security and does not violate inmate’s First Amendment rights).
Research reveals no First Amendment right of a prisoner to discuss Security Risk Group
matters. Accord Ely v. Warden, 1999 WL 203816, at *1 (Conn. Super. Ct. Apr. 1, 1999)
(upholding designation of inmate as Security Risk Group member based on letter written by
inmate to a former inmate which letter referred to Security Risk Group motto and urged
organization). In addition, the claim in the amended complaint is based on one disciplinary
report issued on December 6, 2017. Because Riddick does not allege that he has received any
additional charges based on telephone conversations, he fails to demonstrate that he will suffer
irreparable harm if the motion is denied. The motions for preliminary injunctive relief are
denied.
V.

Motion for Declaratory Ruling ECF No. 20

Riddick asks the Court for a declaratory ruling clarifying the meaning of Connecticut
Regulations 18-81-28 through 18-81-51. He states that he requested the same declaration from
the Department of Correction. The Department declined to issue the declaration because Riddick
had commenced this action.
The Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, provides that the federal court,
“upon the filing of an appropriate pleading, may declare the rights and other legal relations of
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any interested party seeking such declaration, whether or not further relief is or could be sought.
Any such declaration shall have the force and effect of a final judgment or decree and shall be
reviewable as such.” 28 U.S.C. § 2201(a). In a case involving a declaratory judgment action
relating to enforcement of a state criminal statute, the Supreme Court suggests that declaratory
relief is available only at the conclusion of a case. “[P]rior to final judgment there is no
established declaratory remedy comparable to a preliminary injunction.” Doran v. Salem Inn,
Inc., 422 U.S. 922, 931 (1975).
However, in Merrill Lynch, Pierce, Fenner & Smith Inc. v. Doe, 868 F. Supp. 532
(S.D.N.Y. 1994), the district court noted that, “[s]ome courts have indeed acknowledged that
temporary or preliminary declaratory relief is available to litigants as a provisional
remedy. Id. at 535 (citing Original Great Am. Chocolate Chip Cookie Co. v. River Valley
Cookies, Ltd., 970 F.2d 273, 276 (7th Cir. 1992) (Posner, J.) (citing cases in which some courts
have held such relief available and other cases that disagreed)). Thus, there is no clear precedent
authorizing the preliminary declaratory relief Riddick seeks.
Even if the Court were to recognize the right to preliminary declaratory relief, Riddick’s
motion should be denied. Where litigants have filed motions seeking both preliminary injunctive
and preliminary declaratory relief, the court has applied the preliminary injunction standard. See
Dutkiewicz v. City of Bristol, No. 2:11-CV-790 (JCH), 2011 WL 3267761, at *2-3 (D. Conn.
July 28, 2011) (applying preliminary injunction standard to motion seeking both emergency
injunctive and declaratory relief); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Doe, 868 F.
Supp. 532, 535-36 (S.D.N.Y. 1994) (district court has power to issue preliminary declaratory
relief and relief should be conditioned on same standard applied to motions for preliminary
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injunctive relief).
As explained in the preceding section, this case concerns the application of a state
regulation to support a December 2017 disciplinary charge. Riddick seeks a declaratory ruling
that the regulation does not authorize the charge. The court determined above that the motions
for preliminary injunctive relief on the same issue should be denied. This motion is denied for
the same reasons.
VI.

Motion to Amend, ECF No. 27

Riddick has filed a motion to amend his complaint to add exhibits. The court notes that
Riddick recently filed an amended complaint that includes the exhibits referenced in the motion
along with one additional exhibit. As he has filed an amended complaint including this
information, the motion to amend is denied as moot. The court notes that the complaint in all
three submissions is the same. Riddick has only submitted additional exhibits.
VII.

Conclusion

Riddick’s motions for emergency order [ECF Nos. 10, 11], and appointment of counsel
[ECF No. 12] are DENIED for the reasons stated in the Court’s prior rulings, ECF Nos. 193 and
208 filed in Al-Bukhari a/k/a Riddick v. Department of Correction, Case No. 3:16-cv-53(SRU).
His motion for extension of time [ECF No. 18] is DENIED as moot.
Riddick’s emergency motion for order to show cause [ECF no. 7] which the Court
construes as a motion to preserve evidence is GRANTED to the extent that, if the defendants
still retain Riddick’s notebook, they shall preserve it pending resolution of this case.
Riddick’s motions for preliminary injunctive relief [ECF Nos. 14, 22, 23] and his motion
for declaratory ruling [ECF No. 20] are DENIED.
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Riddick’s motion to amend [ECF No. 27] is DENIED as moot.
SO ORDERED at Bridgeport, Connecticut, this 22nd day of February 2019.

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

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