Riddick v. Semple et al

Filing 16

INITIAL REVIEW ORDER. The complaint is dismissed without prejudice to filing an amended complaint within 30 days of this order. Signed by Judge Stefan R. Underhill on 6/7/18. (Kaas, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JEROME RIDDICK,
also known as JA-QURE AL-BUKHARI,
Plaintiff,
v.
SCOTT SEMPLE, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

No. 3:18-cv-408 (SRU)

INITIAL REVIEW ORDER
On March 7, 2018, Jerome Riddick, an inmate currently confined at Northern
Correctional Institution in Somers, Connecticut, brought a civil rights complaint under 42 U.S.C.
§ 1983 against five employees of the Connecticut Department of Correction (“DOC”):
Commissioner Scott Semple (“Semple”), District Administrator Angel Quiros (“Quiros”),
Disciplinary Hearing Officer Nicole Prior (“Prior”), Captain Gregorio Robles (“Robles”), and
Counselor Supervisor Canon (“Canon”).1 He is suing all defendants in their individual and
official capacities and seeks declaratory and injunctive relief. Riddick has also filed two motions
for preliminary injunctive relief. Doc. Nos. 7, 11. In addition, he has filed a motion for an
extension of time to file a response to the defendants’ opposition to his motions for preliminary
injunctions. Doc. No. 13. The defendants, however, have not yet filed an opposition. Riddick
has also filed a motion for the appointment of counsel. Doc. No. 8. On March 14, 2018,
Magistrate Judge Garfinkel granted Riddick’s motion to proceed in forma pauperis. See Doc.
No. 6. For the following reasons, I will dismiss Riddick’s complaint without prejudice and deny
his motions without prejudice to refiling in the future.

The docket activity sheet also lists “Scanning Program – Northern” as a defendant to
this action. That listing appears to be typographical error.
1

I. Standard of Review
Under 28 U.S.C. § 1915A, I must review prisoner civil complaints and dismiss any
portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief
may be granted, or that seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A. Although detailed allegations are not required, the complaint must include
sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they
are based and to demonstrate a plausible right to relief. Bell Atlantic v. Twombly, 550 U.S. 544,
555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints
‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.’”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02
(2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
II. Factual Allegations
Riddick asserts the following factual allegations. On March 30, 2017, Canon was
reviewing a Level-2 grievance appeal submitted by Riddick. Compl. ¶ 10. Within that appeal,
Riddick wrote that “LT Congelos should be restrained from harassing me the way he is, either
you do it or I will.” Id. at ¶ 11. In responding to the appeal, Canon wrote that Riddick’s
statement was “perceived to be a threat against Lieutenant Congelos who is currently assigned to
Northern C.I.” Id. at ¶ 12. Thereafter, Canon filed a disciplinary report against Riddick for
threatening Congelos. Id. On May 3, 2017, Prior found Riddick guilty of the charge and

2

imposed a sanction of fifteen days’ punitive segregation. Id. at ¶ 13. Quiros later upheld
Canon’s and Prior’s decisions. Id. at ¶ 15.
Riddick protested the guilty finding and the manner in which the disciplinary report was
issued and decided. See Compl. ¶¶ 14-15. He contended that he was punished solely based on
the content of his speech, which was “too vague and ambiguous to constitute a true threat.” Id.
at ¶ 22. Riddick argued that, prior to finding him guilty of the charge and imposing punishment,
Quiros, Prior, and Canon never presented any evidence showing that the statement in his
grievance appeal was a true threat. Id. at ¶¶ 17, 23. He also challenges as unconstitutionally
vague and overbroad the DOC’s definition of threats as “verbal or written statements or . . .
physical conduct which causes or is intended to cause fear in any person.” DOC Administrative
Directive 9.5, § 12EE. He argues that, unlike Connecticut’s criminal statute for threatening in
the second degree, Conn. Gen. Stat. § 53a-62, Administrative Directive 9.5, § 12EE does not
have a standard for proving an inmate’s guilt. See Compl. ¶ 24.
On April 26, 2017 and May 15, 2017, Robles issued two more disciplinary reports
against Riddick for making threats against Semple in letters he wrote to him. Compl. ¶ 25. In
one of those letters to Semple, Riddick wrote that he would “make an example and kill” any
cellmate with whom he was paired if not a family member. See Pl.’s Ex. 3, Doc. No. 1 at 38. In
another letter, Riddick wrote that he was going to assault correctional staff, that, when he leaves
the prison, he “would like to kill [him] a C/O to get [his] point across,” and “that [he] will come
back one day or night and sniper rifle ya’ll off one by one, or with a submachine gun and
slaughter the ones I can.” Id., Doc. No. 1 at 40, 45.
Robles claimed in his disciplinary reports that the letters to Semple were “Inmate

3

Requests,” but Riddick argued that they were privileged communications to Semple and,
therefore, “constitutionally protected conduct.” Compl. ¶¶ 26-29. Riddick contends that,
pursuant to the Regulations of Connecticut State Agencies § 18-81-28(e)(5), “any written
correspondence addressed to . . . [t]he Commissioner of Correction” constitutes a privileged
communication and DOC’s Administrative Directives “do[] not authorize [prison officials] to
write tickets or [disciplinary reports] in connection [with an inmate’s] outgoing privileged[d]
correspondence.” See Compl. ¶¶ 28, 30; Pl.’s Ex. 1, Doc. No. 1 at 12.
Riddick alleges that the defendants continue to punish him for making threats under their
unconstitutionally vague and overbroad definition of “threats” without any evidence that
Riddick’s statements are indeed “true threats” in the legal sense. See Compl. ¶¶ 33-36. He
claims that the defendants are, therefore, punishing him for engaging in “constitutionally
protected conduct.” See id. at ¶ 35.
III. Analysis
Riddick claims that the disciplinary reports issued, processed, and/or affirmed by the
defendants constituted an act of retaliation, in violation of his First Amendment rights to free
speech and to petition the government for redress of grievances. He also claims that the
punishment he received violated his Fourteenth Amendment right to due process because the
defendants did not present sufficient evidence that his written statements were in fact true
threats. For the following reasons, both claims are dismissed.
A.

First Amendment Retaliation

“Prison officials may not retaliate against inmates for exercising their constitutional
rights.” Riddick v. Arnone, 2012 WL 2716355, at *6 (D. Conn. Jul. 9, 2012). “To prevail on a

4

First Amendment retaliation claim, [a prisoner] must establish (1) that the speech or conduct at
issue was protected, (2) that the [official] took adverse action against the [prisoner], and (3) that
there was a causal connection between the protected [conduct] and the adverse action.” Holland
v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (internal quotation marks omitted); Espinal v. Goord,
558 F.3d 119, 128 (2d Cir. 2009). “In the prison context, ‘adverse action’ is objectively defined
as conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising .
. . constitutional rights.’” O’Diah v. Cully, 2013 WL 1914434, at *9 (N.D.N.Y. May 8, 2013)
(quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)); see also Ramsey v. Goord, 661 F.
Supp. 2d 370, 399 (W.D.N.Y. 2009) (prisoners may be required to tolerate more than average
citizens before alleged retaliatory action against them is considered adverse). In order to allege
causation, the prisoner must state facts “suggesting that the protected conduct was a substantial
or motivating factor in the prison official’s decision to take action against [him].” Moore v.
Peters, 92 F. Supp. 3d 109, 121 (W.D.N.Y. 2015) (quoting Burton v. Lynch, 664 F. Supp. 2d
349, 367 (S.D.N.Y. 2009)). Some of the facts often used to determine retaliatory motive include:
(1) temporal proximity between the protected conduct and the alleged retaliatory act, (2) the
prisoner’s prior good disciplinary record, (3) a finding of not guilty at the disciplinary hearing,
and (4) statements by the official(s) showing motivation. Id.; O’Diah, 2013 WL 1914434, at
*10.
“Because claims of retaliation are easily fabricated, the courts consider such claims with
skepticism and require that they be supported by specific facts; conclusory statements are not
sufficient.” Riddick, 2012 WL 2716355, at *6; see also Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir. 2001) (“virtually any adverse action taken against a prisoner by a prison official – even

5

those otherwise not rising to the level of a constitutional violation – can be characterized as a
constitutionally proscribed retaliatory act”). “Accordingly, plaintiffs in retaliatory motive cases
must plead ‘specific and detailed factual allegations which amount to a persuasive case’ or ‘facts
giving rise to a colorable suspicion of retaliation.’” Moore, 92 F. Supp. 3d at 120 (quoting
Johnson v. Eggersdorf, 8 F. App’x 140, 144 (2d Cir. 2001)).
Here, Riddick has satisfied the first two retaliation claims – his written grievance appeal
and letters to Semple constituted a protected activity and the defendants took adverse action in
response to his written submissions by imposing sanctions against him based on what he wrote.
However, he has not plausibly alleged a causal connection between his protected activity and the
adverse actions. Riddick does not dispute what he wrote in those submissions, that the
defendants interpreted the content as threats to prison officials, or that the defendants punished
him because of the threatening nature of his statements. He only disagrees with the defendants’
interpretation of those statements as threatening and the DOC’s policy regarding threats made by
prisoners. Because Riddick believes that his written statements were not “true threats” under the
applicable legal standard, he concludes that the defendants’ actions must be acts of retaliation.
See Compl. ¶¶ 13, 29. That conclusion, based on his personal belief that his written statements
were not threatening, does not suffice to state a retaliation claim. See Riddick, 2012 WL
2716355, *6 (conclusory statements insufficient to state retaliation claim); O’Diah, 2013 WL
1914434, *10 (no retaliation claim where issuance of disciplinary report was motivated by
prisoner’s threats and failure to obey orders in violation of facility rules); Green v. Mowery, 212
F. App’x 918, 920 (11th Cir. 2006) (rejecting retaliation claim because prisoner did not dispute
that disciplinary report was issued as a result of threats made by him against prison official in

6

violation of DOC rules). Because Riddick does not dispute that the sanctions imposed against
him were motivated by the defendants’ conclusion that he was threatening prison officials, he
cannot prevail on a claim that the defendants retaliated against him for filing his grievance
appeal or writing letters to Semple.
Riddick has not stated any facts showing that the submission of the grievance appeal and
letters, alone, motivated the defendants to impose sanctions. See Moore, 92 F. Supp. 3d at 120.
Although there is no question that the sanctions were imposed as a result of the content of the
submissions, Riddick does not dispute that the threatening content in the submissions prompted
the sanctions. He has not alleged any statements or conduct from the defendants that would
suggest that the submission of the appeal and letters, alone, prompted the sanctions. He merely
disagrees with the defendants’ conclusion that his written statements constituted threats, and
therefore, assumes that the sanctions were motivated by retaliation. Therefore, his First
Amendment retaliation claim is dismissed.
B.

Fourteenth Amendment Due Process

To demonstrate a procedural due process violation, Riddick must show that the
defendants encroached upon a protected liberty interest. Alston v. Delpeschio, 2016 WL
3211805, at *5 (D. Conn. Jun. 9, 2016). “[I]n the prison setting, liberty interests protected by
Due Process will be limited to freedom from restraint which . . . imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Reynolds v. Murphy,
2015 WL 1456880, at *4 (D. Conn. Mar. 30, 2015) (quoting Sandin v. Conner, 515 U.S. 472,
485 (1995)). In Sandin, 515 U.S. at 485-87, the Supreme Court held that thirty days in punitive
segregation did not constitute an atypical deprivation that would violate a prisoner’s liberty

7

interest. Thus, in reviewing a procedural due process claim, I must examine the actual
punishment received as well as the conditions and duration of the punishment. See Palmer v.
Richards, 364 F.3d 60, 64 (2d Cir. 2004).
Here, Riddick does not allege that he was subjected to an “atypical and significant
hardship . . . in relation to the ordinary incidents of prison life” as a result of the disciplinary
reports. With respect to the report issued as a result of the grievance appeal against Congelos,
Riddick alleges that he was subjected to fifteen days of punitive segregation; Compl. ¶ 13; which
is half of the amount of time imposed in Sandin. As for the reports issued as a result of the
letters to Semple, Riddick only alleges that he “was given multiple sanctions and penalties”
following a hearing. Compl. ¶ 31. He does not specify the punishment he received as a result of
the guilty finding. Based on the foregoing, Riddick has failed to state a claim that the defendants
violated his Fourteenth Amendment right to due process.
ORDERS
(1)

The complaint is DISMISSED without prejudice for failure to state a claim

upon which relief could be granted under 28 U.S.C. § 1915A. If Riddick believes he can allege
facts to cure the factual deficiencies of his initial complaint as explained above, he may file an
amended complaint within thirty (30) days of the date of this order. The amended complaint
must contain specific facts showing that the submission of his grievance appeal and letters to
Semple, rather than the language perceived as a threat, motivated the defendants to impose
sanctions against him to support a claim of retaliation. If Riddick wishes to pursue his due
process claim, he must allege the specific punishment(s) he received as a result of the
disciplinary report issued concerning the letters to Semple. Failure to file an amended

8

complaint within thirty (30) days of the date of this order will result in the dismissal of this
action with prejudice.
(2)

Riddick’s motions for preliminary injunctive relief (Doc. No. 7, 11)

and motion to appoint counsel (Doc. No. 8) are DENIED without prejudice subject to refiling
after the submission of a plausible amended complaint in accordance with the previous order.
Riddick’s motion for extension of time (Doc. No. 13) is DENIED without prejudice as untimely
filed.
It is so ordered.
Dated at Bridgeport, Connecticut this 7th day of June 2018.

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

9